| People v Marcoll (Samuel) |
| 2013 NY Slip Op 51486(U) [40 Misc 3d 141(A)] |
| Decided on September 9, 2013 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
The People appeal from an order of the Criminal Court of the City of New York,
Bronx County (Edgar G. Walker, J.), dated October 14, 2011, which granted defendant's
CPL 440.10 motion to vacate a judgment of the same court and Judge, rendered October
15, 1997, convicting defendant, upon a plea of guilty, of criminal sale of marijuana in the
fourth degree, and imposing sentence.
Per Curiam.
Order (Edgar G. Walker, J.), dated October 14, 2011, reversed, on the law, motion denied, and judgment of conviction reinstated.
The holding of Padilla v Kentucky, 559 US 356 (2010), that the Sixth Amendment requires defense counsel to advise a defendant about the risk of deportation arising from a guilty plea, constitutes a "new rule," which is not to be given retroactive effect (see Chaidez v United States, ___ US ___, 133 S Ct 1103 [2013]). Here, inasmuch as defendant's conviction was final well prior to Padilla, the rule set forth therein is inapplicable (see People v Verdejo, ___ AD3d ___, 967 NYS2d 729 [1st Dept 2013]; People v Bent, ___ AD3d ___, 2013 NY Slip Op 05250 [3d Dept 2013]), and defendant's motion to vacate the judgment of conviction, founded exclusively on Padilla, must de denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 09, 2013