Before the court is the defendant's CPL § 440.10 motion to vacate her judgment of conviction based on ineffective assistance of counsel. On December 9, 2009, the defendant, Blanca Cabrera, a Mexican citizen, pleaded guilty to one count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03), a misdemeanor. The guilty plea rendered the defendant removable under the Immigration and Nationality Act (INA) (8 USCA § 1227[a][2]). Defendant contends that her Sixth Amendment right to effective assistance of counsel was infringed because her defense attorney failed to advise her of the serious immigration consequences of pleading guilty. She argues that, absent such advice, she would not have pleaded guilty. Defendant also contends that since her attorney failed to advise her about the those consequences, the plea cannot be found to have been entered knowingly, intelligently and voluntarily.The People oppose the motion.

For the reasons that follow, the motion to vacate the defendant's judgment of conviction is denied.

Defendant was born in Mexico in 1969, and arrived in the United States in 1990. She remained undocumented until May 14, 2009, when she was granted a "U" visa, which is a non-immigrant visa available for victims of certain crimes who cooperate with [*2]law enforcement to prosecute the offense committed against them (see 8 USC 1101 [a][15][U]). Defendant qualified for the visa based on the domestic violence inflicted upon her by her ex-boyfriend and the father of her son.

On March 6, 2009, the defendant was arrested by New York City corrections officers for attempting to smuggle four latex balloons containing heroin, and two small plastic packages containing marijuana into Rikers Island Correctional Facility. On April 2, 2009, a Bronx County Grand Jury indicted the defendant on one count of Promoting Prison Contraband in the First Degree (PL § 205.25); two counts of Promoting Prison Contraband in the Second Degree (PL § 205.20]; one count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03); and one count of Unlawful Possession of Marijuana (PL § 221.05). At that time, the defendant was represented by Virginia Cora, Esq. (Cora), of the Legal Aid Society. On December 9, 2009, she pleaded guilty, before this court, to the single count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03), in exchange for a promised sentence of three years probation. The court allocuted the defendant, in part, as follows:

When contacted by her current attorney, Cheryl Andrada, Esq., from the Center for Appellate Litigation, her prior attorney, Cora, could not recall speaking to the defendant's immigration attorney from Sanctuary for Families, but she insisted that she advised the defendant that her conviction was a deportable offense. Her Legal Aid case file contains a note dated January 13, 2010, stating that "D[efendant] sentenced to 220.03 w/probation /D[efendant] understands immigration consequences judgment entered indigent"(affirmation of defendant's counsel, exhibit C, Trial Counsel File: Legal Aid Society Appearances Form). Defendant, however, was not sentenced until January 19, 2010. On that date, Justice James Kindler sentenced the defendant to the promised three-year probation [*3]sentence. Defendant never filed a notice of appeal. She fulfilled the terms of her sentence (see affirmation of defendant's counsel, ¶ 17), and was discharged from probation supervision on May 11, 2011.

Two years later, on August 14, 2013, the defendant filed her initial CPL § 440.10 motion to vacate her judgment of conviction, arguing that her attorney's erroneous advise about the immigration consequences of her pleading guilty of the criminal charge constituted ineffective assistance of counsel under the Sixth Amendment. On August 29, 2013, a corrected copy of her motion to vacate the judgment of conviction was filed. In her papers, the defendant acknowledges that the United States Immigration and Customs Enforcement has not initiated removal proceedings against her (id., ¶ 6). However, she contends that as her conviction includes allegations of heroin possession, it constitutes a controlled substance offense under federal law, and it is, therefore, a basis for deportation (see 8 USC 1227 [a][2][B][i]). The conviction not only renders her deportable, but would also bar future admission to the United States (see 8 USC § 1182 [a][2][A][i][II]). Defendant maintains that she accepted the plea offer because doing so would allow her to avoid incarceration, and remain with her 15-year old son, who she reports has special educational needs.

To support her argument, the defendant relies on Padilla v Kentucky (559 US 356 [2010]), which held that defense counsel must inform a client whether a plea carries the risk of deportation. This case was decided three months after the defendant pleaded guilty. Alternatively, she seeks an evidentiary hearing on her motion. The People oppose the motion, and insist that relief cannot be granted under Padilla based on Chaidez v United States (-—US-&mdash, 133 SCt 1103, 185 LEd 149 [2013])and People v Verdejo (109 AD3d 138 [1st Dept 2013]), both cases holding that the rule in Padilla cannot be applied retroactively.Discussion

Before addressing the merits of the CPL § 440.10 motion, the court finds that a hearing on this matter is unnecessary. A hearing is not required when the material in support of the motion, as well as the record in the underlying proceeding, are sufficient for the court to decide the motion (see PL § 440.30 [1]; see also People v Satterfield, 66 NY2d 796, 799 [1985]; People v Griffin, 24 AD3d 972,974 [3d Dept 2005], lv denied 6 NY3d 82 [2006]). This court presided, in part, over the prior [*4]proceeding, which provides a basis upon which the court can decide the motion without a hearing. As such, this court may be "presumed to be fully familiar with all aspects of the case'" (People v Demetsenare, 14 AD3d 792, 793 [3d Dept 2005], citing People v Loomis, 256 AD2d 808, 808-809 [3d Dept 1998], lv denied 93 NY2d 854 [1999]).

Defendant urges the court to apply Padilla retroactively, despite the United States Supreme Court's decision in Chaidez and the First Department's ruling in Verdejo. In particular, she contends that Danforth v Minnesota (552 US 264, 282 [2008]), permits the court to continue applying the retroactivity framework from Teague (489 US 288 [1989], reh denied 490 US 1031 [1989]), but nevertheless reach a divergent conclusion from Chaidez and Verdejo. As raised by the defendant, the questions in this case are whether the court may give broader retroactive effect to Padilla v Kentucky (559 US 356 [2010]) as a matter of state law than it would otherwise enjoy under federal law, and, if it can, whether the defendant has a claim for ineffective assistance of counsel that could justify withdrawal of her guilty plea.With those questions in mind, the court turns to three critical cases concerning ineffective assistance of counsel claims in which immigration consequences followed the entry of a guilty plea. The court begins first with Padilla v Kentucky.

In Padilla, the Kentucky Supreme Court had rejected the petitioner's claim that he had received ineffective assistance of counsel because his defense attorney failed to warn him of the deportation consequences of his guilty plea. The state court reasoned that deportation was not a direct consequence of a plea, but only a collateral consequence. Therefore, the matter was outside the scope of representation required by the Sixth Amendment. The United States Supreme Court reviewed Padilla's claim under its Strickland ineffective assistance of counsel standard,^[FN1] and rejected any direct or collateral consequence [*5]analysis. The Supreme Court stated that it had "never applied a distinction between direct and collateral consequences to define the scope of constitutionally reasonable professional assistance' required under Strickland . . .[and] that distinction . . . need not [be] consider[ed] in this case because of the unique nature of deportation" (Padilla, 559 US at 365). The Supreme Court, however, found that counsel's "advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel" and, therefore, defense counsel was required to provide accurate and specific advice regarding immigration consequences following a guilty plea (id. at 366). In applying the first prong of the Strickland test to Padilla's claim, the Supreme Court found that his plea counsel's failure to advise Padilla of the deportation consequences of his plea was unreasonable, and amounted to a constitutionally deficient performance (Padilla, at 368). The Court, however, did not address whether its holding applied retroactively so as to permit defendants whose convictions were already final at the time it issued its opinion to seek relief on this basis in a collateral proceeding.

Thee years later, the Supreme Court in Chaidez v United States (—— US —&mdash, 133 SCt 1103, 1105, 185 LEd 2d 149 [2013]) addressed whether Padilla applies to persons whose convictions became final before its announcement. In facts analogous to this case, Chaidez argued that Padilla should be applied retroactively to her case as Padilla did nothing more than apply an old rule, namely the Strickland standard, in the context of the deportation consequences of a plea. The Supreme Court concluded that Padilla did not have retroactive effect. Applying the retroactivity principles of Teague v Lane, and finding that Padilla "announced a 'new rule[,]'" the Supreme Court unequivocally held that "Padilla does not have retroactive effect" on collateral challenges under federal law (Chaidez v United States, — US &mdash, 133 SCt at 1105).^[FN2] Under Teague, a new rule of criminal procedure generally cannot be applied retroactively to alter a [*6]final judgment (Teague v Lane, 489 US at 310). Accordingly, Padilla relief is only available prospectively.

Despite the lack of retroactivity under the federal analysis, the defendant argues that a state court may accord broader effect to a new rule of criminal procedure than federal jurisprudence accords (see Danforth v Minnesota, 552 US 264, 275 [2008]). The court declines to broaden the applicability of Padilla for one essential reason. In New York at the time Cabrera filed this motion the question of whether Padilla was retroactively applicable under Teague was an open question. However, it is now a closed question.

While the defendant's CPL § 440.10 motion was pending, the New York Court of Appeals decided People v Baret (—- NY3d -&mdash, 2014 NY Slip Op 04872 [2014]), which held that Padilla did announce a "new" rule under Teague and should not apply retroactively. In Baret, the defendant pleaded guilty to third-degree sale of a controlled substance in 1996. Citing Padilla v Kentucky, the defendant moved to vacate his conviction on the ground that his defense counsel was ineffective for failing to advise him of the immigration consequences of his guilty plea. The Supreme Court, however, declined to apply Padilla retroactively to the defendant's claim. The Appellate Division, First Department, disagreed with the Supreme Court, holding that Padilla was to be retroactively applied to guilty pleas after the United States Congress made significant changes to its immigration laws in 1996.^[FN3] Relying upon Chaidez's reasoning, the Court of Appeals reversed the Appellate Division's order, holding that, under federal or state retroactivity principles, Padilla does not apply retroactively in state court post-conviction proceedings.^[FN4] In so ruling, the Court of Appeals [*7]found that there was no independent state constitutional basis for applying Padilla retroactively. Thus, New York law mandates that Padilla be applied prospectively only. Defendant's claim, in short, is not redressable under Padilla.

On collateral review, lacking retroactivity, the court looks to the state of the law at the time that the defendant's conviction became final. Prior to Padilla, most courts required defense attorneys to inform their clients only of the direct, as opposed to the collateral, consequences of their convictions (see generally Gabriel J. Chin & Richard W. Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L Rev 697, 699 [2002] [highlighting that "virtually all jurisdictions," including "eleven federal circuits, more than thirty states, and the District of Columbia," held that defense counsel need not discuss with their clients the collateral consequences of a conviction, including removal]). In New York, courts were not required to inform defendants of every possible repercussion of a guilty plea prior to its entry (see People v Gravino, 14 NY3d 546, 553 [2010]), courts were required to advise defendants of the direct consequences of the plea (see People v Catu, 4 NY3d 242, 244 [2005]; People v Ford, 86 NY2d 397, 403 [1995]). However, courts generally had no obligation to apprise defendants of the collateral consequences of their pleas (see People v Gravino, 14 NY3d at 553; People v Ford, 86 NY2d at 403). In Ford, the Court of Appeals held that "[d]eportation is a collateral consequence of conviction because it is a result peculiar to the individual's personal circumstances and one not within the control of the court system" (People v Ford, 86 NY2d at 403; see also People v McDonald, 1 NY3d 109, 114 [2003]).^[FN5]

Prior to Padilla, as well, defense attorneys were not legally required to advise a defendant about the immigration consequences of his plea. Deportation and its consequences were considered collateral to the criminal process and such claims fell outside the ambit of the Sixth Amendment. Until Padilla was decided, the Sixth Amendment did not apply to deportation matters at all (Chaidez v. United States, —— US —&mdash, 133 SCt 1103, 185 LEd 2d 149 [2013]). Thus, regardless of how egregious the failure of counsel was if she did not deal with immigration consequences, pre-Padilla, both the Sixth Amendment and the Strickland test were irrelevant.

Defendant asserts that the record of the plea proceeding does not establish that she pleaded guilty voluntarily, knowingly and intelligently. Her attorney states that the court vaguely alluded to the defendant's immigration status during her allocution, but the court's statement contained no warning that the defendant's guilty plea to a controlled substance offense made her deportable. She contends that "boilerplate court warnings like the one here ... indicate that deportation could result, without providing the sort of context necessary to inform the defendant of the likelihood that immigration consequence will come to pass, or what those consequences might be."

Here, the only evidence, that but for counsel's alleged error, the defendant would not have pleaded guilty and would have insisted on going to trial, is the defendant's own affidavit which by itself is insufficient to support her claim. A review of the plea proceeding satisfies the court that the defendant's guilty plea was voluntarily, knowingly, and intelligently made.

Defendant's reliance upon Padilla is misplaced. Under both Chaidez and Baret, the new rule of criminal procedure announced in Padilla can only be applied prospectively. Defendant's conviction was final almost two months before Padilla was announced, thus depriving her of any benefit from that case. Thus, the defendant's attorney cannot be deemed ineffective for allegedly failing to bargain for a plea that would result in less severe immigration consequences or to proceed to trial. Accordingly, the court is obliged to deny the defendant's CPL § 440.10 motion to vacate her judgment of conviction on ineffective assistance of counsel and due process grounds.

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