Defendant appeals from an order of the Criminal Court of the City of New York, Bronx County (Caesar D. Cirigliano, J.), dated March 28, 2012, which granted defendant's CPL 440.10 motion to vacate a judgment (same court and Judge), rendered August 31, 2001, convicting defendant, upon a plea of guilty, of criminal possession of a controlled substance in the seventh degree, and imposing sentence.

Per Curiam.

Order (Caesar D. Cirigliano, J.), dated March 28, 2012, 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, 568 US ___, 133 S Ct 1103 [2013]). Here, inasmuch as defendant's August 2001 conviction was final well prior to Padilla, the rule set forth therein is inapplicable (see People v Verdejo, 109 AD3d 138 [2013]), a point defendant appears to implicitly concede in his respondent's brief on appeal. Thus, the order granting defendant's motion to vacate the judgment of conviction, founded exclusively on Padilla, must be reversed. The defendant's alternative argument for affirmance — relating to the efficacy of the conversion of the underlying misdemeanor complaint — is not reviewable on the People's appeal (see CPL 470.15; People v Goodfriend, 64 NY2d 695, 697 [1984]) and, in any event, would not support vacatur under CPL 440.10 since it could have been, but was not, raised on direct appeal from the underlying judgment of conviction (see CPL 440.10[2][c]; People v Cuadrago, 9 NY3d 362, 364-365 [2007]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concurI concur [*2]
Decision Date: December 31, 2013