The defendant herein moves to vacate the judgments against him pursuant to CPL 440.10, on the grounds of ineffective assistance of counsel.

The defendant asserts that his prior counsel failed to advise him of the deportation consequences of his pleas as required by Padilla v Kentucky, 559 US—, 130 S Ct 1473 (2010)

(hereinafter "Padilla"). An affidavit from earlier counsel admits no recollection of whether

immigration consequences were ever addressed.

The first referenced docket is based on a felony complaint in 2003 charging that the defendant violated an Order of Protection previously issued by another court. As part of his plea allocution in that case, the defendant admitted to striking the victim. While pending sentence on the first docket, the defendant was charged in 2004 with further such felonies in the next two dockets. As a result of favorable plea bargaining, the charges were reduced to misdemeanors and sentencing was adjourned on all cases while the defendant received treatment in a drug program. The defendant was later sentenced in 2008 to conditional discharges for all three cases.

During allocution on the latter dockets on August 3, 2004, the Court was advised by prior counsel that the defendant was a "green card" holder. The Court then warned the defendant that if, "as a result of these convictions, should the Immigration Service decide to deport you", it would not be accepted later as a basis for plea withdrawal and the defendant acknowledged that he understood. There was also discussion on the record of the defendant going to the Polish Embassy and getting documentation of his status in order to qualify for a drug program. So, the defendant had reason to be concerned about immigration matters and had opportunity to inquire about the deportation consequences of his actions. When asked by the Court, the defendant further stated that he was satisfied with his attorney's representation.

The defendant argues that as a result of his convictions, he is now being subjected to removal proceedings and that deportation is "mandatory" or "automatic". In the past, those terms have often been applied to offenses which qualify as "aggravated felonies" under federal law for which discretionary relief is limited or unavailable. See 8 USC § 1101 et seq; 8 USC § 1227 (a) (2) (A) (iii); 18 USC § 16; 8 USC § 1229 b (a) (3); 8 USC § 1228 ( c ); United States v Couto, 311 F3d 179, 184 (2d Cir 2002) and Morris v Holder, 2012 WL 1383075 (2d Cir April 23,2012). [*2]

In many such cases, the availability of discretionary relief and the certainty of deportation may depend on a number of variables. See Lopez-Cardona v Holder, 662 F3d 1110 (9th Cir 2010). Nevertheless, Padilla comments that since 1996, if a non-citizen commits a removable offense, deportation is "practically inevitable". In this case, the defendant is clearly removable.See 8 USC § 1227 (a) (2) (E) (ii); Szalai v Holder, 572 F3d 975 (9th Cir 2009) and Tacata v

U.S., 2007 WL 1303018 (D Hawaii).

New York law previously held that the immigration consequences of a plea were collateral in nature and, so, failure to warn a defendant was not deemed to constitute ineffective assistance of counsel. See People v Ford, 86 NY2d 397 (1995).

New York's felony advisory statute, CPL 220.50 (7), requires deportation warnings from the Court but, holds that failure to make them shall not affect the voluntariness of the plea or

the validity of the conviction.Effective assistance of counsel is traditionally analyzed in New York as the totality of representation. See People v Baldi, 54 NY2d 137 (1981); People v Benevento, 91 NY2d 708 (1998 ) and People v Stultz, 2 NY3d 277 (2004); see also People v Turner, 5 NY3d 476 (2005).

In People v McDonald, 1 NY3d 109 (2003) the Court held that a single egregious error

in the form of an affirmative misrepresentation concerning deportation fell below an effective level of representation by counsel. See People v Caban, 5 NY3d 143 (2005). The Court in McDonald found that if a defendant, who is being deported, pled guilty because his attorney incorrectly assured him that he would not be deported, his conviction can be vacated. See also, People v Argueta, 46 AD3d 46 (2d Dept 2007).

For a period of time, some attorneys, not well versed in immigration law, were concerned about addressing deportation issues because such discussion was considered collateral, while a mistake might fall below an effective level of assistance.

In Padilla (2010), the Supreme Court of the United States ruled that defense counsel is obligated to correctly advise a non-citizen client of the risk of deportation consequences. This has resulted in a number of new motions to vacate, based on ineffective assistance of counsel, by defendants now facing deportation as a result of earlier pleas. While the Court noted that an informed attorney might try to negotiate a plea to a non-deportable offense, it did not impose an additional duty beyond giving accurate advice. See People v Marino-Affinati,88 AD3d 742 (2d Dept 2011) and People v Gesperd,33 Misc 3d 1228 (A) (Sup Ct, Kings County 2011).

Under the federal standard in Strickland v Washington, 466 US 668 (1984), a defendant must show not only that defense counsel was deficient, but that the defendant suffered actual prejudice as a result (often referred to as the "prejudice prong" ). With respect to a plea the defendant must show that, but for counsel's errors, he would not have pleaded guilty but would have insisted on going to trial. Hill v Lockhart, 474 US 52, 59 (1985). To obtain relief on this type of claim, a petitioner must show that a decision to reject a plea would have been rational under the circumstances. See Padilla, 130 S Ct at 1485 and Roe v Flores-Ortega, 528 US 470,480,486 (2000).

The Seventh and Tenth Circuits have found that Padilla is not to be applied retroactively, while the Third Circuit has found that it should be. See Chaidez v United States, 655 F3d 684

(7th Cir 2011),cert granted —US—,2012 WL 1468539 (April 30,2012); United States v Chang Hong, 2011 US App. LEXIS 18034(10th Cir 2011) and United States v Orocio, 645 F3d 630 (3d Cir 2011).Although the retroactive application of Padilla is still unsettled in New York, this Court follows appellate authority which holds that it should be applied retroactively. See People v Nunez, 30 Misc 3d 55 (Appellate Term, 2d Dept 2010),lv denied 17 NY3d 820 (2011). See also People v Bennett, 28 Misc 3d 575 (Crim Ct, Bronx County 2010) and People v DeJesus, 30 Misc 3d 1203 (A) ( Sup Ct, New York County 2010).

Padilla stated that for at least the past 15 years, professional norms have imposed an obligation on defense attorneys to give competent advice to their clients about the deportation consequences of a plea. It must be decided to what extent the opportunity for relief provided to the defendant in Padilla, on an earlier plea, will be afforded to other defendants who are similarly situated. See Medina v United States, 2012 U.S. Dist. LEXIS 34467 ( SD NY, February 21,2012 ) and People v Lorente, 34 Misc 3d 1225 (A)(Sup Ct, Queens County 2012).

In this case, the defendant was advised by the Court that his guilty pleas invited immigration consequences and he had ample time to withhold his latter pleas or to withdraw his earlier one in order to address those consequences. See People v Felipe, 15 Misc 3d 1124 (A) (Sup Ct, Kings County 2007).

The defense suggests that the Court's deportation warning to the defendant was deficient. However, the Court had no duty to give warnings for a misdemeanor. The Court's role clearly differs from that of defense counsel. See People v Harnett, 16 NY3d 200 (2011), People v Diaz, 92 AD3d 413 (1st Dept 2012) and People v Rosario, 93 AD3d 605 (1st Dept March 29, 2012).

This Court's statement to the defendant was not misleading but served to put the defendant on notice that his guilty plea had potential immigration consequences. See People v Contant, 77 AD3d 967 (2d Dept 2010), recalled for other reasons, 84 AD3d 977 ( 2011 ) and Zhang v United States, 506 F3d 162 (2d Cir 2007). Upon remand in Zhang, it was found that even if the defendant had been told that deportation was mandatory, there was no evidence that he would have chosen to proceed to trial. Zhang v United States, 543 F Supp 2d 175 (ED NY, 2008).

The defendant in People v Garcia, 29 Misc 3d 576 ( Sup Ct, Kings County 2010 ) argued that his attorney had originally declined to discuss immigration consequences and suggested that he consult an immigration expert. The defendant claimed that he was then misadvised by the alleged expert, whose advice he believed was more accurate than the warning he received from the court. In this case, prior counsel does not remember giving any advice at all, and Mr. Latalski does not claim to have consulted anyone else. The defendant in Garcia showed concern for immigration consequences early on.

The question is whether the defendant has offered reason to believe that his prior attorney's failure to warn him about deportation consequences led the defendant to plead guilty,

resulting in removal proceedings.

Given the court's warning about deportation, the defendant is hard pressed to show that the silence of counsel actually prejudiced his defense. See United States v Bhindar, 2010 WL 2633858 (SD NY June 30, 2010); Ellington v United States, 2010 WL 1631497 (SD NY April 20, 2010); Boakye v United States, 2010 WL 1645055 (SD NY , April 22, 2010); Ex Parte Victorio, 2012 WL 86803 (Tex App Dallas) and Flores v State, 57 So 3d 218 (Fla. App 4 Dist 2010).

In support of his motion, the defendant asserts in his November 25, 2011 affidavit that he is now engaged to be married and has a new child. As the prosecutor's answer points out, these factors occurred well after the earlier pleas and would not have been considered at the time.The People note that the defendant has been charged with violating court orders of protection in newer cases, which also involve a relationship with the mother of his child. Although charges

were dropped by the witness in the most recently filed case (August 2011), the Department of Homeland Security, later in the same month, commenced removal proceedings based on the defendant's first case. The defendant further states in his affidavit that he was unaware he could face deportation and that he would not have pled guilty had he been told. The Court's warning belies that claim. The defendant accepted all the benefits of his counsel's plea negotiation while expressing no concern for the known risk of deportation, until now.The defendant herein made no earlier effort to withhold his pleas in the two cases where he was told by the Court about deportation consequences, or, to withdraw his plea in the first case. Nor did he make any such attempt during the years sentence was pending on all cases or move to vacate thereafter. Conclusory or self-serving statements in support of the motion will not suffice. See People v Perez, 18 Misc 3d 752 (2007) and People v Mackenzie, 224 AD2d 173 (1st Dept 1996).

Unlike those cases where there is a disputed matter, such as incorrect advice under

People v McDonald, 1 NY3d 109 (2003), which requires further proceedings to address, the issues in this case are matters of record and contained in the sworn pleadings. Therefore, a hearing is not required. See CPL 440.30 (4) (d) and People v Achouatte, 91 AD3d 1028 (3d Dept 2012).

Based on the foregoing reasoning and analysis, the Court finds that the defendant has not satisfied the criteria necessary to prevail on his motion, and his request for relief is hereby

denied.

This Opinion constitutes the Decision and Order of the Court.

Dated: May 8, 2012 [*3]

___________________________________

Hon. Alan J. Meyer