Defendant moves pursuant to CPL §440.10(h) for an order vacating the judgment of conviction against her on the ground that she received ineffective assistance of counsel primarily because she was not warned by her attorney about the adverse immigration consequences of her guilty plea. The People oppose Defendant's motion.

On March 13, 1998, Defendant, a lawful permanent resident of the United States, pled guilty before Judge Laura Safer Espinoza to Criminal Possession of Marihuana in the Second Degree (PL §221.25), with a promised sentence of five years probation. Defendant also waived her right to appeal as part of the plea bargain. On April 23, 1998, Defendant was sentenced as promised. On April 24, 2002, a bench warrant was issued for Defendant based on a violation of probation. On October 11, 2002, Defendant pled guilty to a violation of probation and was sentenced to a definite sentence of 75 days incarceration.

Defendant, born in Jamaica and a permanent resident of the United States, has resided in [*2]the New York City area for the past 20 years, 10 years at the same address. She is the mother of three children, ages, 32, 30 and 17. Defendant is employed as a health aide for the elderly. Defendant has not indicated whether she is in United States Immigration and Customs Enforcement (ICE) custody.

Defendant maintains that her conviction was the result of accepting delivery of a package addressed to one Christopher Johnson at her home. Based on the contents of the package, she was arrested for possession of marijuana. She states that she never opened the package and there was no indication that she knew what it contained. She claims that her attorney recommended that she take the plea because she was promised no jail time but he failed to inform her that she could be deported as a result of the plea. Defendant contends that had her attorney given her accurate advice regarding the immigration consequences, she never would have pled guilty. Additionally, Defendant claims that her counsel never informed her that if she went to trial, the prosecution would have to prove beyond a reasonable doubt that she had knowledge of the contents of the package.

Defendant has not submitted an affidavit from her plea counsel, nor has she attached minutes of the 1998 proceedings. Defendant relies on Padilla v. Kentucky, (559 US 356 [2010]) which imposed an affirmative duty on defense counsel to provide accurate advice concerning the potential immigration consequences to a non-citizen defendant. In Chaidez v. United States, (133 S. Ct 1103 [2013]), the Court subsequently held that Padilla announced a "new rule " and therefore defendants whose convictions became final prior to Padilla cannot benefit from its holding.

On June 30, 2014 ^[FN1] , the New York Court of Appeals in People v. Baret, ( __NY3d __, 2014 NYSlip Op 04872 [2014]) held that as a matter of state law, "Padilla created a new rule of federal constitutional criminal procedure in New York which ... does not apply retroactively in CPL §440.10 proceedings." Here, since Defendant's conviction was final well over a decade before Padilla was decided, she cannot assert a post-conviction ineffective assistance of counsel claim under Padilla.Defendant's remaining claim that she was denied effective representation because her attorney failed to advise her that if she went to trial the prosecutor would be required to prove defendant's knowledge of the contents of the package beyond a reasonable doubt is unsubstantiated. "A judgement of conviction is presumed valid and a defendant moving to vacate her conviction must come forward with sufficient allegations to create an issue of fact. While the production of contrary evidence will satisfy the burden of going forward and eliminate the presumption of regularity from the case, bare allegations are insufficient to carry the evidentiary burden" (see People v. Session, 34 NY2d 254, 255-256 [1974]). Here, the claims are made solely by the defendant and are unsupported by any other affidavit or evidence. Under these and all other circumstances attending the case there is not reasonable possibility that such allegation is true (see CPL §440.30[4][d]). Defendant has not submitted the minutes of the plea proceeding, nor has she submitted an affidavit from her plea counsel or offered an explanation [*3]for the absence of such an affidavit (see People v. Morales 58 NY2d 1008 [1983]; People v. Chen, 293 AD2d 362 [1st Dept 2002]; People v. Gil, 285 AD2d 7[1st Dept 2001]). The Court also notes that Defendant signed the Superior Court Information (SCI) on two separate pages. On one page, Defendant acknowledged that she had read the SCI and was aware that she was giving up her right to be prosecuted by an indictment filed by a Grand Jury. On another page, Defendant signed off on language charging her with Criminal Possession of Marihuana in the Second Degree, that she, "knowingly and unlawfully possess one or more preparations, compounds, mixtures or substances containing marihuana ...."

Thus, based on Defendant's totally unsubstantiated claims, her motion to vacate her conviction is denied without a hearing. This constitutes the decision and order of the Court.September 5, 2014______________________________Dominic R. Massaro, JSC