Defendant moves pursuant to CPL §440.10, to vacate his conviction on the grounds that both counsel and the Court failed to advise him of the potential immigration consequences of his guilty plea. The People oppose.

On November 9, 1992, Defendant was arrested in an undercover buy-and- bust operation in the Bronx. The accusatory instrument alleged that Defendant sold an undercover police officer one glassine envelope of heroin in exchange for pre-recorded buy money. The money was [*2]found in Defendant's pocket. Defendant was charged with Criminal Sale of a Controlled substance in the Third Degree (PL §220.39[1]) and Criminal Possession of a Controlled Substance in the Seventh Degree (PL §220.03).

On November 19, 1992, Defendant waived indictment and pled guilty (Sayah J.), pursuant to a Superior Court Information, to Attempted Criminal Sale of a Controlled Substance in the Third Degree (PL §§110/220.39) in exchange for a sentence of six months in jail. At the same proceeding, Defendant disposed of another open felony case, under docket number 92X043621, by pleading guilty to Criminal Possession of a Controlled Substance in the Seventh Degree in exchange for a sentence of a conditional discharge. On December 10, 1992, Defendant was sentenced as promised. At the plea and sentencing proceedings, Defendant was represented by Martha Schneiderman, Esq. of the Legal Aid Society.

In charging documents, dated February 4, 1993, the United States Department of Justice, Immigration and Naturalization Service (hereinafter "INS"), initiated removal proceedings against Defendant. According to the documents, Defendant, who was a citizen of Jordan, entered the United States as a lawful permanent resident on June 27, 1985. Defendant's 1992 conviction of Attempted Criminal Sale of a Controlled Substance in the Third Degree, an aggravated felony as defined by federal immigration law, made him removable under section 241(a)(2)(A)(iii) of the Immigration and Nationality Act (hereinafter "INA"). The INS papers also stated that Defendant was removable under section 241(a)(2)(B)(i) of the INA, in that he had been convicted of a controlled substance offense. Defendant waived his right to petition for relief from removal under section 212(c) of the INA. In an order dated May 10, 1993, he was ordered removed to Jordan. On May 13, 1993, Defendant was deported.

In 1997, Defendant was married in Palestine to his current wife who is a naturalized United States citizen. In December of 1997, Defendant reentered the United States with his wife. They presently have six children. Defendant states that between 1997 and 2013, he was gainfully employed, paid taxes and was a model citizen and parent. In 2013, Defendant attempted to naturalize.

In charging papers dated December 20, 2013, the INS informed Defendant of its intent to deport him on the grounds that he unlawfully entered the country after having previously been removed. According to the INS, Defendant had the right to contest this determination by making a statement to immigration, but was not entitled to a hearing.

Padilla v. Kentucky, 559 US 356 (2010) established that the Sixth Amendment requires criminal defense attorneys to provide advice about the risk of deportation that may result from a guilty plea. Subsequently, in Chaidez v. United States, 568 US ___, 133 S.Ct. 1103 (2013), the Supreme Court held that Padilla had declared a new rule and does not apply retroactively to federal cases that had become final before Padilla was decided. In People v. Baret, 23 NY3d 777, 799 (2014), the Court of Appeals held that Padilla "created a new rule of federal constitutional criminal procedure in New York which ... does not apply retroactively in CPL 440.10 proceedings"

Defendant argues that his conviction should be vacated because it was obtained in [*3]violation of his right to effective assistance of counsel under the State and Federal Constitutions due to his attorney's failure to advise him of the immigration consequences of his guilty plea. Defendant was represented by Ms. Schneiderman at plea and sentencing. Defendant maintains that because he also was represented by two other Legal Aid Society attorneys at his arraignment and on 180.80 day, respectively, there was a lack of continuity in his representation and none of his attorneys advised him as to his rights, his defenses or the immigration consequences of his guilty plea. Defendant has not provided affidavits from his attorneys.

Defendant submits that neither Chaidez nor Baret is binding on this court. In the case of the former, because the state may apply broader protection than mandated, and as to the latter, because it is a mere plurality and in his opinion both were wrongly decided.

In response the People argue that it is now settled law in New York, pursuant to Baret, that the Padilla rule does not apply retroactively to convictions like Defendant's that were final before Padilla was decided. Furthermore, the People submit that Defendant's ineffective assistance of counsel claim is deficient on several other grounds. It is not corroborated by affidavits from the attorneys that represented him and Defendant does not indicate what efforts, if any, were made to contact them. The People maintain that this warrants summary denial of Defendant's motion for his failure to substantiate all the essential facts pursuant to CPL §440.30(4)(b).

The People point out that Defendant's plea predates the 1996 amendments to the INA that made deportation a nearly inevitable consequence of a felony conviction and that although Defendant claims that at the time of his plea remaining in this country as a lawful permanent resident was very important to him, he failed to avail himself of the possibility of discretionary cancellation of removal under section 212(c) of the INA during his deportation proceedings. The People submit that vacating the instant conviction would have no impact on his current deportation proceedings since Defendant is being deported pursuant to section 241(a)(5) of the INA because he reentered the United States illegally after having been removed or having been deported and the removal order is not longer reviewable.

In Strickland v. Washington, 466 US 668 (1984), the United States Supreme Court set forth a two-prong test for establishing when an attorney renders ineffective assistance of counsel: (1) the representation must fall below an objective standard of reasonableness and (2) there must be a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. In People v. Baldi, 54 NY2d 137, 147 (1981), the New York Court of Appeals held that "[s]o long as the evidence, the law and the circumstances of a particular case, viewed in totality and as of the time of representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met."

Defendant's ineffectiveness of counsel claims are based on his attorneys alleged failure to advise him about risk of deportation arising from a 1992 guilty plea. The Padilla rule does not apply to persons whose convictions became final before Padilla was decided (see Chaidez, supra; Baret, supra) and Defendant's conviction became final almost two decades before Padilla was decided. Defendant has not set forth any valid ineffective assistance of counsel claims that are independent of Padilla (see People v. Simpson, 120 AD3d 412 [1st Dept 2014]). Thus, Defendant's motion to vacate his conviction on the ground of ineffective assistance of counsel is [*4]denied.

Defendant also argues that the judgment must be vacated pursuant to People v. Peque, 22 NY3d 168 (2013) because the Court failed to advise him of the immigration consequences of his guilty plea ^[FN1] making his plea not knowing or voluntary. In Peque, the Court of Appeals held that due process compels a trial court to apprise a defendant, who is not a United States citizen, when pleading guilty to a felony, that he or she may be deported.

In response, the People submit that Defendant cannot challenge the sufficiency of his plea allocution in a CPL §440.10 motion since whether a court advised him of possible immigration consequences of a guilty plea is a record based claim and is procedurally barred by

A motion to vacate the judgement must be denied where sufficient facts appear on the record of the proceedings to have had the issue adjudicated on direct appeal, but no appellate review was sought (see CPL 440.10(2)(c); People v. Louree, 8 NY3d 541 (2007). In this case, no appeal was taken and pursuant to CPL §440.10(2)(c), resolution of Defendant's record based claim is procedurally barred (see People v. Simpson,120 AD3d 412 [1st Dept 2014] [deficiency in a plea allocution is record based and therefore may not be raised by way of a CPL §440.10 motion]; see also People v. Lovejoy 44 Misc 3d 457 [Sup Ct, Bronx County, Newman, J.(2014)]; People v. Moran, 44 Misc 3d 1205(A)[Sup Ct, Bronx, Iacovetta, J. (2014)]).

Moreover, in People v. Llibre, ___AD3d ___, 2015 NY Slip Op 00817 (1st Dept 2015), the First Department stated, "while the remanding of a Peque error may involve a remand for fact-finding proceedings ... we reject Defendant's argument that this circumstance permits a record-based Peque claim to be raised on a CPL 440.10 motion.... Although Peque is retroactive to cases pending on direct appeal (People v. Brazil, ___ AD3d ___, 2014 NY Slip Op 08555 [1st Dept 2014]), there is no basis under the principles set forth in People v. Pepper, (53 NY2d 213 [1981], cert denied 454 US 967 [1981]) to extend retroactivity to convictions that have become final" (see also, People v. Fermin, 123 AD3d 465 [1st Dept 2014]; People v. Manon, 123 AD3d 467 [1st Dept 2014]).

Also relevant to this case is that Defendant pled guilty in 1992, when the immigration consequences of a criminal conviction were not as formidable as they are today. As stated in Peque, when discussing Michael Thomas' appeal of his 1992 plea:

Finally, even if Peque were applicable to the case at bar, in order to obtain relief Defendant must show that there is a reasonable probability that if the trial court had advised him of the risk of deportation, he would not have pled guilty but would have gone to trial. Here, Defendant received a very favorable disposition. The case against him was strong. He sold drugs to an undercover officer and after the transaction prerecorded buy money was found in his pocket. In 1992, the maximum sentence exposure on the top charge, Criminal Sale of a Controlled Substance in the Third Degree, a class B felony, was an indeterminate term of eight and one-third to twenty five years of imprisonment. At the time of the plea, Defendant also had another pending felony drug case in the Bronx and he was able to dispose of both cases by pleading to a lesser offense in exchange for a six month sentence. The Court also notes that when he was being deported, Defendant waived his right to petition for relief from removal under section 212(c) of the INA.

Accordingly, Defendant's motion to vacate his conviction on the ground that the court allegedly failed to warn him of the immigration consequences of his guilty plea is denied.

Based on the foregoing, Defendant's motion to vacate his conviction is denied in its entirety.

This constitutes the decision and order of the Court