Padilla rule in New York

2025It is true, as the People argue, that in 2004, before the Supreme Court decided Padilla v Kentucky , 559 US 356 (2010), criminal defense counsel in New York could not be considered ineffective for failing to advise their clients about the immigration consequences of guilty pleas ( People v Ford , 86 NY2d 397 [1995]; see also People v Baret , 23 NY3d 777 [2014] [holding that the Padilla rule does not apply retroactively under state or federal law]).

2025It is true, as the People argue, that in 2004, before the Supreme Court decided Padilla v Kentucky , 559 US 356 (2010), criminal defense counsel in New York could not be considered ineffective for failing to advise their clients about the immigration consequences of guilty pleas ( People v Ford , 86 NY2d 397 [1995]; see also People v Baret , 23 NY3d 777 [2014] [holding that the Padilla rule does not apply retroactively under state or federal law]).

2014Although the defendant argues that, pursuant to Danforth v Minnesota ( 552 US 264 , 282 [2008]), this Court should give broader retroactive effect to the Padilla rule than required under Teague v Lane ( 489 US 288 [1989]), this Court has declined to do so (see People v Soodoo, 109 AD3d 1014, 1015 [2013]; People v Andrews, 108 AD3d 727 [2013], lv denied 22 NY3d 1038 [Dec. 4, 2013]).

2014Although the defendant argues that, pursuant to Danforth v Minnesota ( 552 US 264 , 282 [2008]), this Court should give broader retroactive effect to the Padilla rule than required under Teague v Lane ( 489 US 288 [1989]), this Court has declined to do so (see People v Soodoo, 109 AD3d 1014, 1015 [2013]; People v Andrews, 108 AD3d 727 [2013], lv denied 22 NY3d 1038 [Dec. 4, 2013]).

2014Although the defendant argues that, pursuant to Danforth v Minnesota ( 552 US 264 , 282 [2008]), this Court should give broader retroactive effect to the Padilla rule than required under Teague v Lane ( 489 US 288 [1989]), this Court has declined to do so (see People v Soodoo, 109 AD3d 1014, 1015 [2013]; People v Andrews, 108 AD3d 727 [2013], lv denied 22 NY3d 1038 [Dec. 4, 2013]).

2014Although the defendant argues that, pursuant to Danforth v Minnesota ( 552 US 264 , 282 [2008]), this Court should give broader retroactive effect to the Padilla rule than required under Teague v Lane ( 489 US 288 [1989]), this Court has declined to do so (see People v Soodoo, 109 AD3d 1014, 1015 [2013]; People v Andrews, 108 AD3d 727 [2013], lv denied 22 NY3d 1038 [Dec. 4, 2013]).

2021Further, "[i]n the context of a Padilla claim, the defendant 'must convince the court that a decision to reject the plea bargain would have been rational under the circumstances"' ( People v Picca , 97 AD3d at 180, quoting Padilla v Kentucky , 559 US at 372 ).

2021Further, "[i]n the context of a Padilla claim, the defendant 'must convince the court that a decision to reject the plea bargain would have been rational under the circumstances"' ( People v Picca , 97 AD3d at 180, quoting Padilla v Kentucky , 559 US at 372 ).

2014This Court has declined to afford the Padilla rule a more expansive retroactive effect under the New York State Constitution (see People v Andrews, 108 AD3d 727 [2013], lv denied 22 NY3d 1038 [2013]; see also People v Vansertima, 113 AD3d 705 [2014]; People v Vargas, 112 AD3d 979 [2013]; People v Alvarez, 111 AD3d 843 [2013]).

2014This Court has declined to afford the Padilla rule a more expansive retroactive effect under the New York State Constitution (see People v Andrews, 108 AD3d 727 [2013], lv denied 22 NY3d 1038 [2013]; see also People v Vansertima, 113 AD3d 705 [2014]; People v Vargas, 112 AD3d 979 [2013]; People v Alvarez, 111 AD3d 843 [2013]).

2014Although the defendant argues that, pursuant to Danforth v Minnesota ( 552 US 264 , 282 [2008]), this Court should give broader retroactive effect to the Padilla rule than required under Teague v Lane ( 489 US 288 [1989]), this Court has declined to do so (see People v Soodoo, 109 AD3d 1014, 1015 [2013]; People v Andrews, 108 AD3d 727 [2013], lv denied 22 NY3d 1038 [Dec. 4, 2013]).

2014Although the defendant argues that, pursuant to Danforth v Minnesota ( 552 US 264 , 282 [2008]), this Court should give broader retroactive effect to the Padilla rule than required under Teague v Lane ( 489 US 288 [1989]), this Court has declined to do so (see People v Soodoo, 109 AD3d 1014, 1015 [2013]; People v Andrews, 108 AD3d 727 [2013], lv denied 22 NY3d 1038 [Dec. 4, 2013]).

2014Here, without the benefit of the Padilla rule, the alleged failure of the defendant’s attorney to advise him of the possibility that he might be deported as a result of his plea does not constitute deficient performance under either the federal or state constitution (s ee People v Vargas, 112 AD3d 979 [2013]; People v Soodoo, 109 AD3d at 1015 .) Accordingly, the Supreme Court did not err in denying the defendant’s motion pursuant to CPL 440.10 to vacate the judgment of conviction on the ground of ineffective assistance of counsel.

2014Here, without the benefit of the Padilla rule, the alleged failure of the defendant’s attorney to advise him of the possibility that he might be deported as a result of his plea does not constitute deficient performance under either the federal or state constitution (s ee People v Vargas, 112 AD3d 979 [2013]; People v Soodoo, 109 AD3d at 1015 .) Accordingly, the Supreme Court did not err in denying the defendant’s motion pursuant to CPL 440.10 to vacate the judgment of conviction on the ground of ineffective assistance of counsel.

2014However, the rule announced in Padilla has been held to apply only in those cases where the judgment of conviction was not yet final as of the date Padilla was decided (see Chaidez v United States, 568 US —, 133 S Ct 1103 [2013]), and this Court has expressly declined to afford the Padilla rule a more expansive retroactive effect under the New York State Constitution (see People v Andrews, 108 AD3d 727 [2013], lv denied 22 NY3d 1038 [2013]; see also People v Vargas, 112 AD3d 979 [2013]; People v Alvarez, 111 AD3d 843 [2013]; People v Tony C., 110 AD3d 1093 [2013]; People v Soodoo, 109 AD3d 101

2014However, the rule announced in Padilla has been held to apply only in those cases where the judgment of conviction was not yet final as of the date Padilla was decided (see Chaidez v United States, 568 US —, 133 S Ct 1103 [2013]), and this Court has expressly declined to afford the Padilla rule a more expansive retroactive effect under the New York State Constitution (see People v Andrews, 108 AD3d 727 [2013], lv denied 22 NY3d 1038 [2013]; see also People v Vargas, 112 AD3d 979 [2013]; People v Alvarez, 111 AD3d 843 [2013]; People v Tony C., 110 AD3d 1093 [2013]; People v Soodoo, 109 AD3d 101

2020This principle fully applies to claims of ineffectiveness based on alleged Padilla violations, as illustrated by the Court of Appeals' rejection of the defendant's attempt to raise a Padilla claim on direct appeal in Peque ( see id. ["it was incumbent on defendant to substantiate his allegations about counsel's (immigration) advice below by filing a CPL 440.10 motion, and his failure to file a postjudgment motion renders his claim unreviewable"]; see also People v Haffiz , 19 NY3d 883, 885 [2012]).

2020This principle fully applies to claims of ineffectiveness based on alleged Padilla violations, as illustrated by the Court of Appeals' rejection of the defendant's attempt to raise a Padilla claim on direct appeal in Peque ( see id. ["it was incumbent on defendant to substantiate his allegations about counsel's (immigration) advice below by filing a CPL 440.10 motion, and his failure to file a postjudgment motion renders his claim unreviewable"]; see also People v Haffiz , 19 NY3d 883, 885 [2012]).

2014After Chaidez was decided, the Appellate Division abandoned the reasoning that it had espoused in this case on the ground that “ ‘the principles of retroactivity developed by the Supreme Court in construing Federal constitutional law govern the disposition’ ” of a New York case involving a new rule of federal constitutional criminal procedure (People v Verdejo, 109 AD3d 138, 141 [1st Dept 2013], quoting Eastman, 85 NY2d at 274-275 ), and the Padilla rule, which “merely prescribes] a duty imposed on counsel,” does not fall within Teague’s exception to non-retroactivity for watershed rules ( 109

2014After Chaidez was decided, the Appellate Division abandoned the reasoning that it had espoused in this case on the ground that “ ‘the principles of retroactivity developed by the Supreme Court in construing Federal constitutional law govern the disposition’ ” of a New York case involving a new rule of federal constitutional criminal procedure (People v Verdejo, 109 AD3d 138, 141 [1st Dept 2013], quoting Eastman, 85 NY2d at 274-275 ), and the Padilla rule, which “merely prescribes] a duty imposed on counsel,” does not fall within Teague’s exception to non-retroactivity for watershed rules ( 109

2025It is true, as the People argue, that in 2004, before the Supreme Court decided Padilla v Kentucky , 559 US 356 (2010), criminal defense counsel in New York could not be considered ineffective for failing to advise their clients about the immigration consequences of guilty pleas ( People v Ford , 86 NY2d 397 [1995]; see also People v Baret , 23 NY3d 777 [2014] [holding that the Padilla rule does not apply retroactively under state or federal law]).

2025It is true, as the People argue, that in 2004, before the Supreme Court decided Padilla v Kentucky , 559 US 356 (2010), criminal defense counsel in New York could not be considered ineffective for failing to advise their clients about the immigration consequences of guilty pleas ( People v Ford , 86 NY2d 397 [1995]; see also People v Baret , 23 NY3d 777 [2014] [holding that the Padilla rule does not apply retroactively under state or federal law]).

2014However, the rule announced in Padilla has been held to apply only in those cases where the judgment of conviction was not yet final as of the date Padilla was decided (see Chaidez v United States, 568 US —, 133 S Ct 1103 [2013]), and this Court has expressly declined to afford the Padilla rule a more expansive retroactive effect under the New York State Constitution (see People v Andrews, 108 AD3d 727 [2013], lv denied 22 NY3d 1038 [2013]; see also People v Vargas, 112 AD3d 979 [2013]; People v Alvarez, 111 AD3d 843 [2013]; People v Tony C., 110 AD3d 1093 [2013]; People v Soodoo, 109 AD3d 101

2014However, the rule announced in Padilla has been held to apply only in those cases where the judgment of conviction was not yet final as of the date Padilla was decided (see Chaidez v United States, 568 US —, 133 S Ct 1103 [2013]), and this Court has expressly declined to afford the Padilla rule a more expansive retroactive effect under the New York State Constitution (see People v Andrews, 108 AD3d 727 [2013], lv denied 22 NY3d 1038 [2013]; see also People v Vargas, 112 AD3d 979 [2013]; People v Alvarez, 111 AD3d 843 [2013]; People v Tony C., 110 AD3d 1093 [2013]; People v Soodoo, 109 AD3d 101

2015In 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 NY3d 109, 111 [2003]).

2015In addition to his Padilla claim, defendant argues that his *480 counsel affirmatively misadvised him about the immigration consequences of his plea (see People v McDonald, 1 NY3d 109 [2003]).

2025The allegation in the defendant's motion, however, is not that his lawyer failed to advise him about the effects of his guilty plea, but rather that counsel affirmatively misadvised him that the plea would have no "negative impact on [his] immigration status." Even before Padilla , it was the law in New York and in the Second Circuit that affirmative misstatements regarding immigration consequences could constitute ineffective assistance ( People v McDonald , 1 NY3d 109 [2003]; US v Couto , 311 F3d 179, 188 [2d Cir2002]).

2025The allegation in the defendant's motion, however, is not that his lawyer failed to advise him about the effects of his guilty plea, but rather that counsel affirmatively misadvised him that the plea would have no "negative impact on [his] immigration status." Even before Padilla , it was the law in New York and in the Second Circuit that affirmative misstatements regarding immigration consequences could constitute ineffective assistance ( People v McDonald , 1 NY3d 109 [2003]; US v Couto , 311 F3d 179, 188 [2d Cir2002]).

2025Incarcerated individuals who have been charged with violating prison regulations are entitled to due process protections. ( Matter of Henry v Fischer , 28 NY3d 1135 , 1138 [2016]; see also Smythe v State of New York , UID No. 2020-015-069 [Ct Cl, Collins, J., Aug. 20, 2020]; Perkins v State of New York , UID No. 2022-059-004 [Ct Cl, Liccione, J., Jan. 19, 2022].) The opportunity to timely be heard is a fundamental requirement of due process ( Mathews v Eldridge , 424 US 319, 333 [1976]) and this requirement is especially compelling when an individual is already in excessive confinement . ( Mat

2025Incarcerated individuals who have been charged with violating prison regulations are entitled to due process protections. ( Matter of Henry v Fischer , 28 NY3d 1135 , 1138 [2016]; see also Smythe v State of New York , UID No. 2020-015-069 [Ct Cl, Collins, J., Aug. 20, 2020]; Perkins v State of New York , UID No. 2022-059-004 [Ct Cl, Liccione, J., Jan. 19, 2022].) The opportunity to timely be heard is a fundamental requirement of due process ( Mathews v Eldridge , 424 US 319, 333 [1976]) and this requirement is especially compelling when an individual is already in excessive confinement . ( Mat

2020This principle fully applies to claims of ineffectiveness based on alleged Padilla violations, as illustrated by the Court of Appeals' rejection of the defendant's attempt to raise a Padilla claim on direct appeal in Peque ( see id. ["it was incumbent on defendant to substantiate his allegations about counsel's (immigration) advice below by filing a CPL 440.10 motion, and his failure to file a postjudgment motion renders his claim unreviewable"]; see also People v Haffiz , 19 NY3d 883, 885 [2012]).

2020This principle fully applies to claims of ineffectiveness based on alleged Padilla violations, as illustrated by the Court of Appeals' rejection of the defendant's attempt to raise a Padilla claim on direct appeal in Peque ( see id. ["it was incumbent on defendant to substantiate his allegations about counsel's (immigration) advice below by filing a CPL 440.10 motion, and his failure to file a postjudgment motion renders his claim unreviewable"]; see also People v Haffiz , 19 NY3d 883, 885 [2012]).

2014Finally, any arguments relative to retained counsel’s representation at the subsequent hearing to determine defendant’s risk level classification under the Sex Offender Registration Act (see Correction Law art 6-C) are not reviewable in the context of defendant’s direct appeal from the judgment of conviction (cf. People v Smith, 15 NY3d 669, 673 [2010]; see Correction Law § 168-d [3]). * Defendant’s remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.

2014Finally, any arguments relative to retained counsel’s representation at the subsequent hearing to determine defendant’s risk level classification under the Sex Offender Registration Act (see Correction Law art 6-C) are not reviewable in the context of defendant’s direct appeal from the judgment of conviction (cf. People v Smith, 15 NY3d 669, 673 [2010]; see Correction Law § 168-d [3]). * Defendant’s remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.

2013As to the third factor, retroactive application of the Padilla rule would potentially lead to an influx of CPL 440.10 motions to vacate the convictions of defendants whose guilty pleas were properly entered and accepted by courts under the old standard (cf. Policano v Herbert, 7 NY3d 588, 604 [2006]), thus adversely affecting the criminal justice system.

2013As to the third factor, retroactive application of the Padilla rule would potentially lead to an influx of CPL 440.10 motions to vacate the convictions of defendants whose guilty pleas were properly entered and accepted by courts under the old standard (cf. Policano v Herbert, 7 NY3d 588, 604 [2006]), thus adversely affecting the criminal justice system.

2025It is true, as the People argue, that in 2004, before the Supreme Court decided Padilla v Kentucky , 559 US 356 (2010), criminal defense counsel in New York could not be considered ineffective for failing to advise their clients about the immigration consequences of guilty pleas ( People v Ford , 86 NY2d 397 [1995]; see also People v Baret , 23 NY3d 777 [2014] [holding that the Padilla rule does not apply retroactively under state or federal law]).

2025It is true, as the People argue, that in 2004, before the Supreme Court decided Padilla v Kentucky , 559 US 356 (2010), criminal defense counsel in New York could not be considered ineffective for failing to advise their clients about the immigration consequences of guilty pleas ( People v Ford , 86 NY2d 397 [1995]; see also People v Baret , 23 NY3d 777 [2014] [holding that the Padilla rule does not apply retroactively under state or federal law]).

2018In order for the defendant to obtain vacatur of his plea of guilty based on a Padilla violation, he must also establish that " there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial'" ( People v Hernandez, 22 NY3d 972, 975 , quoting Hill v Lockhart, 474 US 52, 59 ).

2018In order for the defendant to obtain vacatur of his plea of guilty based on a Padilla violation, he must also establish that " there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial'" ( People v Hernandez, 22 NY3d 972, 975 , quoting Hill v Lockhart, 474 US 52, 59 ).

2022The second prong of the Padilla test "requires a determination of whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" ( People v Oouch , 97 AD3d at 905 [internal quotation marks and citation omitted]; see People v Rajpaul , 100 AD3d 1183, 1184 [2012]).

2022The second prong of the Padilla test "requires a determination of whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" ( People v Oouch , 97 AD3d at 905 [internal quotation marks and citation omitted]; see People v Rajpaul , 100 AD3d 1183, 1184 [2012]).

2022The second prong of the Padilla test "requires a determination of whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" ( People v Oouch , 97 AD3d at 905 [internal quotation marks and citation omitted]; see People v Rajpaul , 100 AD3d 1183, 1184 [2012]).

2022The second prong of the Padilla test "requires a determination of whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" ( People v Oouch , 97 AD3d at 905 [internal quotation marks and citation omitted]; see People v Rajpaul , 100 AD3d 1183, 1184 [2012]).

2022"On a motion to vacate a judgment of conviction under CPL 440.10, a hearing is only required if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief" ( People v Marte-Feliz , 192 AD3d at 1397-1398 [internal quotation marks and citations omitted]; see People v Durham , 195 AD3d 1318, 1320 [2021], lv denied 37 NY3d 1160 [2022]).

2022"On a motion to vacate a judgment of conviction under CPL 440.10, a hearing is only required if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief" ( People v Marte-Feliz , 192 AD3d at 1397-1398 [internal quotation marks and citations omitted]; see People v Durham , 195 AD3d 1318, 1320 [2021], lv denied 37 NY3d 1160 [2022]).

2022"On a motion to vacate a judgment of conviction under CPL 440.10, a hearing is only required if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief" ( People v Marte-Feliz , 192 AD3d at 1397-1398 [internal quotation marks and citations omitted]; see People v Durham , 195 AD3d 1318, 1320 [2021], lv denied 37 NY3d 1160 [2022]).

2022"On a motion to vacate a judgment of conviction under CPL 440.10, a hearing is only required if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief" ( People v Marte-Feliz , 192 AD3d at 1397-1398 [internal quotation marks and citations omitted]; see People v Durham , 195 AD3d 1318, 1320 [2021], lv denied 37 NY3d 1160 [2022]).