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Supreme Court Case Relied Upon to Vacate Convictions by Guilty Plea Where Defendant Not Informed of Possibility of Deportation Can Not Be Applied Retroactively

The First Department, in a full-fledged opinion by Justice Tom, reversed the sentencing court’s vacation of defendant’s conviction (by guilty plea).  The sentencing court had reversed the conviction on the ground defendant had not been informed of the risk of deportation based on the plea.  The sentencing court’s ruling was based upon the US Supreme Court’s ruling in Padilla v Kentucky, 559 US 356 (2010), which the sentencing court determined should be applied retroactively.  The First Department explained that Padilla should not be applied retroactively, overruling First Department and 3rd Department precedent:

Padilla has been accorded retroactive application by this Court …and the 3rd Department…. However, since Padilla “marks a break from both Federal and State law precedents . . . and fundamentally alters the Federal constitutional landscape, the principles of retroactivity developed by the Supreme Court in construing Federal constitutional law govern the disposition of this case” (People v Eastman, 85 NY2d 265, 275 [1995]).

The holding that Padilla announced new law, by which this Court is bound, dictates the conclusion that it has no retroactive application. As Eastman explains:  “Pursuant to Teague, new rules of constitutional criminal procedure are applied retrospectively in one of two situations: (1) where the new rule places certain kinds of primary, private individual conduct beyond the power of the criminal law making authority to proscribe’ or (2) where the new rule alters a bedrock procedural element of criminal procedure which implicates the fundamental fairness and accuracy of the trial” (Eastman, 85 NY2d at 275, quoting Teague, 489 US at 311-312).

The rule announced in Padilla does neither, merely prescribing a duty imposed on counsel, and does not warrant retroactive application. Thus, defendant may not avail himself of the ruling… People v Verdejo, 2013 NY Slip Op 04913, 1st Dept 6-27-13

 

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