Opinion
2015-02-3
The PEOPLE of the State of New York, Respondent, v. Marcos LLIBRE, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Robin Nichinsky of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Robin Nichinsky of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein of counsel), for respondent.
FRIEDMAN, J.P., ANDRIAS, SAXE, RICHTER, GISCHE, JJ.
Order, Supreme Court, New York County (Bonnie G. Wittner, J.), entered on or about June 27, 2013, which denied defendant's CPL 440.10 motion to vacate a 2007 judgment of conviction, unanimously affirmed.
Defendant's ineffectiveness of counsel claims are primarily based on his attorney's alleged failure to advise him about the risk of deportation arising from his guilty plea ( see Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 [2010] ). However, Padilla has no retroactive application to this appeal ( see Chaidez v. United States, 568 U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 [2013]; People v. Baret, 23 N.Y.3d 777, 992 N.Y.S.2d 738, 16 N.E.3d 1216 [2014] ). Since the Padilla rule does not apply here, defendant has no basis under either the United States or New York Constitutions for claiming that the alleged lack of immigration advice constituted ineffective assistance of counsel ( see People v. Chacko, 119 A.D.3d 955, 989 N.Y.S.2d 890 [2d Dept.2014], lv. denied24 N.Y.3d 1001, 997 N.Y.S.2d 120, 21 N.E.3d 572 [2014] ).
In addition to his Padilla claim, defendant argues that his counsel affirmatively misadvised him about the immigration consequences of his guilty plea ( see People v. McDonald, 1 N.Y.3d 109, 111, 769 N.Y.S.2d 781, 802 N.E.2d 131 [2003] ). However, defendant's factual allegations failed to support such a claim ( seeCPL 440.30[4] ). In his affidavit, defendant only claimed his attorney told him that, after taking the plea, he “would just get probation and the case would be over.” This does not constitute erroneous advice on the subject of deportation ( see People v. Melo–Cordero, 123 A.D.3d 595, 999 N.Y.S.2d 42 [1st Dept.2014]; see also People v. Simpson, 120 A.D.3d 412, 990 N.Y.S.2d 813 [1st Dept.2014] ).
Defendant's claim relating to the court's inadequate or erroneous advice concerning the immigration consequences of the plea ( see People v. Peque, 22 N.Y.3d 168, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013], cert. denied ––– U.S. ––––, 135 S.Ct. 90, 190 L.Ed.2d 75 [2014] ) “[would be] clear from the face of the record and therefore not properly raised in a CPL article 440 motion” (People v. Louree, 8 N.Y.3d 541, 546, 838 N.Y.S.2d 18, 869 N.E.2d 18 [2007]; see also People v. Simpson, 120 A.D.3d at 412, 990 N.Y.S.2d 813). Defendant has not established any cognizable justification for his failure to appeal ( seeCPL 440.10[2][c]; People v. Stewart, 16 N.Y.3d 839, 841, 923 N.Y.S.2d 404, 947 N.E.2d 1182 [2011]; People v. Ceni, 123 A.D.3d 506, 999 N.Y.S.2d 385 [1st Dept.2014] ), and nothing in People v. Grubstein, 24 N.Y.3d 500, 2 N.Y.S.3d 1, 25 N.E.3d 914 (2014), which involves a complete deprivation of counsel, is to the contrary. Moreover, defendant's argument that his failure to appeal was the product of ineffective assistance of counsel has been rejected by this Court on defendant's coram nobis motion (M–6609, 2014 N.Y. Slip Op. 73663[U], 2014 WL 2457818 [1st Dept.2014] ). In addition, while the remedy for a Peque error may involve a remand for fact-finding proceedings (22 N.Y.3d at 200–201, 980 N.Y.S.2d 280, 3 N.E.3d 617), we reject defendant's argument that this circumstance permits a record-based Peque claim to be raised on a CPL 440.10 motion.
In any event, even if the statute permitted a record-based Peque claim to be raised by way of CPL article 440, defendant's claim would still be unavailing. Although Peque is retroactive to cases pending on direct appeal (People v. Brazil, 123 A.D.3d 466, 998 N.Y.S.2d 181 [1st Dept.2014] ), there is no basis under the principles set forth in People v. Pepper, 53 N.Y.2d 213, 440 N.Y.S.2d 889, 423 N.E.2d 366 (1981), cert. denied454 U.S. 967, 102 S.Ct. 510, 70 L.Ed.2d 383 (1981) to extend retroactivity to convictions that have become final.