The defendant, a native of Dominica, West Indies, was admitted to the United States as a lawful permanent resident on December 10, 1984. On April 3, 1995, the defendant was arrested and charged with Criminal Possession of a Controlled Substance in the Third Degree and other crimes. On April 26, 1995, the defendant waived prosecution by indictment and agreed to be prosecuted by a Superior Court Information. The defendant then pled guilty to Attempted Criminal Sale of a Controlled Substance in the Third Degree. On July 25, 1995, the defendant was sentenced to five years probation.

By pro se notice of motion dated, November 23, 2011, the defendant, who was in federal immigration custody pending deportation, moved to vacate his conviction pursuant to CPL § 440. The defendant filed supplemental papers through counsel on July 5, 2012. The defendant alleged, inter alia, that his trial counsel was ineffective because trial counsel did not advise him of the immigration consequences of his plea as required by the United States Supreme Court decision in Padilla v. Kentucky (559 U.S. 356 [2010]).

By Decision and Order dated October 15, 2012, this Court ruled that Padilla should be applied retroactively and ordered a hearing to determine what, if any, advice trial counsel gave the defendant regarding the immigration consequences of his plea. The defendant's other claims were denied.

On February 15, 2013, the Court conducted said hearing and reserved decision. On February 20, 2013, the United States Supreme Court decided United States v. Chaidez (133 S.Ct. 1103) which held that Padilla shall not apply retroactively, that is, it will not be applied to cases already final on direct review. The defendant argues that state courts may offer more expansive review than the federal courts and submits that a more expansive standard should be applied in this case.

As a threshold matter, state courts are permitted, but not required, to apply a broader retroactivity standard than the federal courts to a federal constitutional rule (Danforth v. Minnesota, 552 US 264 [2008]). Whether a new precedent (rule) should be applied retroactively as a matter of state law was considered by the Court of Appeals in People v Pepper (53 NY2d 213 [1981]). The Pepper Court adopted the then-existing reasoning of the United States Supreme Court in Stovall v. Denno (388 U.S. 293 [1967]) , and stated that the following factors should be considered in [*2]determining whether a decision should be applied retroactively: "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards" (Pepper at 220; quoting Stovall at 297). The Court of Appeals went on to explain "the extent of the reliance and the nature of the burden on the administration of justice are of substantial significance only when the answer to the retroactivity question is not to be found in the purpose of the new rule itself (Pepper at 220, citing, Desist v United States, 394 US 244, 249 [1969]).

The criteria first enunciated in Stovall was superceded on the federal level by Teague v. Lane, (489 U. S. 288 [1989]), which made retroactivity dependant on whether the new precedent articulated a new rule or was a new application of an old rule. In Chaidez, the Supreme Court applied the Teague standard, found that Padilla had announced a new rule and, therefore, ruled that it was not to be applied retroactively.

New York, however, has continued to rely on the Pepper criteria, even post-Teague (see, Policano v. Herbert, 7 NY3d 588, 603 [2006]). Thus, New York has different, and possibly broader, criteria for assessing the question of retroactivity than the federal courts. Accordingly, the issue of whether Padilla should be applied retroactively must also be addressed under the Pepper standard.

In explaining the application of the first Pepper criterion, the purpose to be served by the new standards, the Court of Appeals stated "[t]hus, where otherwise there could be a complete miscarriage of justice, current constitutional standards that go to the heart of a reliable determination of guilt or innocence have been substituted for those in effect at the time of trial" (Pepper, 53 NY2d at 221). This indicates that the purpose of the rule includes its importance in determining guilt or innocence.

In People v. Ford (86 NY2d 397 [1995]), the Court of Appeals ruled that the failure to advise a defendant of immigration consequences did not constitute the ineffective assistance of counsel because deportation is a collateral consequence of conviction. The court stated that it is a collateral consequence because "it is a result peculiar to the individual's personal circumstances and one not within the control of the court system" (id at 403). In the wake of Padilla, the fact that deportation is a collateral consequence is no longer a meaningful distinction to cases on trial or on direct appeal. It is, however, meaningful when performing a Pepper analysis.

Whether a defendant is guilty or not is separate from, and collateral to, any resulting immigration consequences. In the context of a guilty plea, the determination of guilt is derived from the defendant's allocution, which is designed to insure that a defendant is in fact guilty. Thus, the failure to advise a defendant of immigration consequences should not cast doubt on an otherwise proper plea allocution. Accordingly, the change in law made by Padilla, is not the type of change that is entitled to retroactive effect under the first Pepper criterion.

The other two Pepper criteria, the reliance by law enforcement personnel on the old rule and the effect on the administration of justice, also militate against retroactivity. Prior to Padilla, prosecutors could rely on Ford when accepting plea allocutions that did not address immigration consequences. Furthermore, in Policano, supra, the Court of Appeals found that a new interpretation of "depraved indifference" homicide, if applied retroactively, could "potentially flood" the criminal justice system with motions to vacate convictions pursuant to CPL § 440. [*3]Motions to vacate on Padilla grounds would be much more numerous and would more significantly affect the administration of justice.

Accordingly, under the New York retroactivity principles enunciated in Pepper, the Padilla holding does not apply to cases, including this one, which became final prior to Padilla being decided. The defendant's motion to vacate his conviction pursuant to CPL § 440 is, therefore, denied.

This constitutes the Decision and Order of the Court.

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A.S.C.J.