People v Floyd F.

[*1] People v Floyd F. 2012 NY Slip Op 50713(U) Decided on April 13, 2012 Criminal Court Of The City Of New York, Kings County Kalish, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 13, 2012
Criminal Court of the City of New York, Kings County

People of the State of New York

against

Floyd F., Defendant(s),



94K053487



Ms. Renee R. Russell for the Defendant on the motion

Ms. Jill Oziemblewski for the People in opposition to the motion

Robert D. Kalish, J.

Upon the submitted papers, the Defendant, Floyd F.'s motion pursuant to CPL §440.10 to vacate his plea of guilty to Penal Law §130.55 - Sexual Abuse in the Third Degree (Class B Misdemeanor) taken on November 10, 1994 and the judgment of conviction rendered against him on January 12, 1995 based upon said plea, is hereby denied without a hearing as follows:

Parties' Arguments

Defendant's Moving Papers

In the instant motion, Defendant requests the following relief: (1) the vacatur of the judgment of conviction based upon ineffective assistance of counsel, (2) the vacatur of the judgment of conviction on due process grounds because the Defendant's guilty plea was not knowingly, intelligently and voluntarily entered, and (3) for such other and further relief that this Court may deem just and proper.[FN1]

The Defendant states in his affidavit that prior to pleading guilty to Penal Law §130.55 - Sexual Abuse in the Third Degree on November 10, 1994, Defendant's counsel at the time never informed the Defendant as to the potential immigration consequences of taking said plea. The Defendant indicates that had said counsel informed him of the immigration consequences, that [*2]the Defendant would not have taken the plea and would have chosen to go to trial.

The Defendant states in his affidavit that he was born in Jamaica in 1973 and has been a lawful permanent resident of the United States since 1991. The Defendant further indicates that he has been married to a United States citizen since 2003 and has three children, all of whom are United States citizens. The Defendant indicates that he previously applied for full citizenship in 1995 [sic 1997] and was denied. The Defendant affirms that in 2011 he consulted with his "immigration attorney" to renew his application for United States citizenship and was informed by his "immigration attorney" that his conviction of Penal Law §130.55 in 1994 made him "inadmissible" and subject to deportation. The Defendant finally states in his affidavit that his prior defense counsel did not inform him of any immigration consequences prior to his pleading guilty to Penal Law §130.55, and therefore the Defendant was denied effective assistance of counsel.

Defendant's Counsel makes the following affirmations in support of the motion. Initially, Counsel indicates that she was unable to recover the court file or minutes from the Defendant's plea taken on November 10, 1994 and that her affirmation is based upon her conversations with the Defendant and her examination of the certificate of disposition as to the Defendant's conviction of Penal Law §130.55 on January 12, 1995.[FN2] Counsel affirms that the Defendant was arrested on August 24, 1994 and subsequently arraigned under docket number 94KN053487 on the charges of Penal Law §§ 130.35 - Rape in the First Degree (Class B Felony); 130.65 - Sexual Abuse in the First Degree (Class D Felony); and 260.10 - Endangering the Welfare of a Child (Class A Misdemeanor). Counsel indicates that on November 10, 1994, the Defendant plead guilty to Penal Law §130.55 in "Part Jury 1 at the Kings County Criminal Court" and was sentenced on January 12, 1995 to one year of probation. Counsel affirms that the Defendant successfully observed and completed the terms of his probation. Counsel also affirms that the Defendant applied for citizenship in 1995 [sic 1997] and was denied. Counsel further states that in June 2011, the Defendant and Counsel consulted with an "immigration attorney" to assist in the Defendant's re-application for United States citizenship, and was informed by the "immigration attorney" that the Defendant was both ineligible for citizenship and subject to deportation based upon his guilty plea.

Counsel also affirms that the Defendant did inform his prior counsel in 1994 of the Defendant's immigration status as a permanent resident, and that prior counsel never mentioned any immigration consequences to the Defendant prior to the Defendant's guilty plea. Counsel further indicated that prior counsel encouraged the Defendant to plead guilty to Penal Law §130.55 to resolve the criminal action, and that the Defendant would not have plead to said charge if prior counsel had informed him of the immigration consequences of doing so.

Defendant's Supplemental Papers

Defendant's counsel also submitted supplemental papers to the instant motion wherein Counsel argues that the People's case against the Defendant in the underlying Criminal action [*3]was too weak to prevail had it gone to trial. Counsel further reiterates the Defendant's position that he informed his prior counsel of his immigration status and was not advised as to the immigration consequences of his plea.[FN3] The Defendant's supplemental papers include a copy of the Defendant's Application for Naturalization and the Decision dated April 1, 2000 denying said application on the grounds that the Defendant did not meet the "good moral character" requirement of 8 CFR Section 316.10[b], which requires that "during the statutory period" the Defendant not "[c]ommit unlawful acts that adversely reflect upon the applicants moral character" (Decision on Defendant's Application for Naturalization p. 4). The Decision goes on to indicate that the Defendant was arrested on August 24, 1994, plead guilty to Penal Law §130.55 and that the Defendant's record "fails to establish Good Moral Character and therefore your case is denied". The Decision further indicates that the denial "is without prejudice to [his] filing an application for citizenship when [he] become[s] eligible under the applicable provisions of the Act."

Counsel also attaches with the supplemental papers an affirmation by the Defendant's prior attorney of record in the underlying criminal matter. Defendant's prior counsel affirms that he has "no independent recollection of the facts, proceeding plea and/or any attorney client conferences related to the Defendant Floyd F. under Docket Number 94KN053487" (Affirmation of Defendant's prior counsel).

Defendant's prior counsel further states that he has advised the Defendant's current Counsel on the instant motion that as of the date of the affirmation (February 24, 2012) he has not retrieved from storage nor reviewed his files regarding Floyd F. Defendant's prior counsel further indicates that he will retrieve said files from storage and review them if requested to do so by the Court.

People's Opposition

In opposition, the People argue that the instant motion should be summarily denied. The People argue that at the time of the Defendant's plea, November 10, 1994, an attorney's failure to advise a defendant of immigration consequences did not constitute ineffective assistance of counsel. The People argue that the Defendant's reliance on Padilla v. Kentucky (130 S Ct 1473 [2010]) is misplaced since the rule in Padilla v. Kentucky does not apply retroactively to the Defendant's plea, which was taken in 1994. The People further argue that the Defendant's allegation that his defense counsel failed to advise him, resulting in his ineligibility for United State citizenship does not fall within the purview of Padilla v. Kentucky. Specifically, the People argue that the harm that the Supreme Court sought to prevent in Padilla v. Kentucky was specifically related to deportation and does not include the Defendant's ability to become a US citizen. The People argue that "becoming a citizen is a privilege, not an entitlement, and applications for citizenship may be denied for reasons that do not involve criminal convictions (People's Memorandum of Law p. 2).

The People further argue that the Defendant has not satisfied the requirement of proving that prejudice resulted from prior counsel's alleged failure to advise him of immigration [*4]consequences. The People argue that there is no reasonable probability that the Defendant's decision to plead guilty would have been different had his attorney told him that conviction could result in his removal from the United States. The People argue that by pleading guilty to a Class B Misdemeanor, the Defendant received a sentence of one-year probation as opposed to the possibility of imprisonment had he been convicted of the top felony charges against him after trial. The People also argue that if the Defendant had been convicted of the top felony charges, said convictions would have still rendered him deportable.

The People further argue that the Defendant's claim should be rejected because it rests solely on his own self-serving allegations of fact, which are based upon the Defendant's dubious recollection of legal advice given to him over seventeen years ago. The People further argue that the Defendant's prior counsel affirmed, that he has no independent recollection as to whether or not he advised the Defendant of his immigration rights prior to the Defendant's plea to Penal Law §130.55. The People indicate in their affirmation in opposition to the Defendant's motion that they have been informed by the Defendant's prior counsel via telephone conversation that he does not remember his conversations with the Defendant and that he does not now have access to his files as to the underlying criminal case. The Defendant's prior counsel further indicated to the People that it would take considerable time for him to get said files from storage.

The People further argue that although the Defendant alleges that he is presently in danger of being deported, he has not corroborated this allegation with any documentation from the United States Immigration and Customs Enforcement Agency ("ICE"), nor has he cited to the Immigration and Nationality Act ("INA") provision that would render him deportable now based upon the conviction for Penal Law §130.55. The People argue that contrary to the Defendant's assertions, the deportation consequences of the Defendant's conviction for third-degree sexual abuse, if any, are neither clear nor automatic, since the Defendant's plea preceded the 1996 amendments to the immigration laws. Given that the Defendant plead guilty to Penal Law §130.55 in 1994, the People argue that it is unclear whether the Defendant would now be eligible to obtain relief from deportation or a cancellation of removal, in the event that he was placed in removal proceedings. The People also note that the Defendant has had contact with the United States immigration authorities on several occasions since his conviction in 1994, including his failed application for naturalization in 1997 and his green card renewal application in or around 2001.[FN4] The People emphasize that the Defendant's application for naturalization would have entailed extensive personal background checks during which any facts supporting the Defendant's removability from the United States would have become apparent. The People argue that the Defendant's continued status as a lawful permanent resident for the past 17 years, previous contact with the immigration authorities, the fact that he has not been subject to ICE detainer, and the lack of any current deportation procedures against the Defendant all strongly suggest that no immigration consequences were "triggered" as a result of the Defendant's guilty plea in 1994.

The People further argue that the Defendant's instant motion is untimely as the Defendant waited more than seventeen years before raising his claim of ineffective assistance of counsel. [*5]The People argue that the Defendant cannot show that he acted with due diligence in raising the instant claim of ineffective assistance of counsel after he first learned that his conviction could effect his immigration status in or around 1998, when he was denied his application of naturalization. The People argue that the Defendant's claim that his guilty plea was involuntary is undermined by his substantial delay in moving to vacate the 1994 conviction and emphasize that the People would be severely prejudiced in bringing the underlying action to trial should the conviction be vacated, given the substantial amount of time that has elapsed and the lack of any recoverable transcripts as to the underlying criminal action.

The People further argue that if this Court rules that Padilla v. Kentucky does have retroactive effect, the ruling in Padilla v. Kentucky still does not apply to the instant case, as the Defendant was convicted prior to the 1996 amendments to the immigration law. The People argue that prior to the 1996 amendments to the immigration law, deportation was not a direct and/or "practically inevitable" consequence of the Defendant's plea and subsequent conviction of Penal Law §130.55. Therefore, the People argue that even if Defendant's prior counsel did not advise the Defendant of the immigration consequences of pleading guilty, prior to the change in the immigration laws, said admission was not contrary to then prevailing professional norms.

The People further argue that the Defendant has failed to established that he was prejudiced by his prior attorney's alleged failure to inform him of the immigration consequences prior to the Defendant's plea. Specifically, the People argue that under the circumstances of the underlying criminal case, there is no reasonable probability that the Defendant would not have plead guilty to Penal Law §130.55 had his attorney informed him that conviction could result in his removal from the United States. The People emphasize that the Defendant received a favorable outcome given the severity of the charges against him and the potential consequences had the Defendant been convicted after trial.

Finally, the People argue that if the Court does not reject the Defendant's motion without a hearing pursuant to CPL §440.30[4][a] or [b], then the Defendant should be required to prove his allegations by a preponderance of the evidence at a hearing pursuant to CPL §440.30[3], [5] and [6].

Defendant's Reply

In her reply to the People's opposition, Defendant's Counsel argues that the Defendant's guilty plea to Penal Law §130.55 renders him both "deportable" and "inadmissible" with virtually no available relief. Counsel argues that although the Defendant plead guilty to Penal Law §130.55, a Class B Misdemeanor, considering that the initial felony complaint charged the Defendant with Rape in the First Degree, Sexual Abuse in the First Degree and Endangering the Welfare of a Child, under US immigration laws the Defendant would be considered an aggravated felon with a guilty plea to the equivalent of Sexual Abuse of a Minor. Counsel argues that Sexual Abuse of a Minor is deemed an aggravated felony under immigration law INA 101[a][43][A], rendering the Defendant inadmissible under INA 212[a][2][A][i][I] as a crime of moral turpitude and deportable under INA 237[a][2][A][i] & [iii]. Counsel further argues that Sexual Abuse of a Minor creates a bar to all forms of relief, including cancellation of removal under INA 240A[a] or waiver of inadmissibility under INA 212[h]. Counsel does, however, acknowledge the possibility of discretionary relief pursuant to INA 212[c], since the [*6]Defendant's conviction was prior to 1996.[FN5] Counsel further argues that the underlying conviction renders the Defendant "likely permanently ineligible for US citizenship" since conviction of an Aggravated Felony" creates a bar on a finding of good moral character required for citizenship pursuant to INA 101[f][8] as codified in 8 USC 1101[f][8]. Counsel also argues that prior counsel's failure to even minimally advise the Defendant of the adverse immigration consequences withheld the prospect of discretionary relief from the Defendant.

Defendant's Counsel further argues that although the Defendant was convicted of Penal Law §130.55 in 1994, prior to the 1996 amendment to the immigration laws, the Defendant is still subject to the consequences of the amended immigration statutes. Specifically, Counsel argues that despite the fact that the Defendant plead guilty and was convicted of Penal Law §130.55 prior to 1996, the Defendant is still subject to deportation based upon said conviction. Counsel also argues that although ICE has not yet begun removal proceedings against the Defendant, there is nothing to impair ICE from beginning removal procedures at a later time based upon the Defendant's conviction of Penal Law §130.55.

Defendant's Counsel further argues that the Defendant's motion is not untimely as the Defendant only became aware that the 1994 conviction was a bar to admissibility and made him deportable in 2011, when consulting with an "immigration attorney". Defense Counsel reiterates that Padilla v. Kentucky is retroactive and that professional norms imposed upon the Defendant's prior counsel the obligation to advise the Defendant as to the deportation requirements of his guilty plea. Defense Counsel further reiterates that the People's case in the underlying criminal action was too weak to prevail at trial and that Defendant's prior counsel did not advise him of any potential immigration consequences prior to his guilty plea.

Analysis of Law

The Defendant's burden on a motion to vacate his guilty plea and the judgment entered against him pursuant to said plea

CPL 440.10[1][h] reads as follows:

440.10. Motion to vacate judgment

1. At any time after the entry of a judgment, the court in which it was entered may, upon motion of the Defendant, vacate such judgment upon the ground that:

[h] The judgment was obtained in violation of a right of the Defendant under the constitution of this state or of the United States.

"There is a presumption of regularity which attaches to judgments of conviction. In order to overcome that presumption and entitle a Defendant to a hearing on a motion to vacate the judgment pursuant to CPL 440.10, the Defendant has the burden of coming forward with allegations sufficient to create an issue of fact as to matters not appearing on the record of the underlying conviction." (People v. Crippen, 196 AD2d 548, 549 [2nd Dept 1993] lv denied 82 [*7]NY2d 848 [1993]; see also People v. Cruz, 14 NY3d 814, 816 [2010]; People v. Andrew, 1 NY3d 546 [2003]; People v. Velasquez, 1 NY3d 44 [2003]; People v Bogan, 2010 NY Slip Op 8127, 2 [2nd Dept 2010] lv denied 16 NY3d 742 [2011]).

The Defendant has a due process right to understand the substance of his plea and a Constitutional right to effective assistance of counsel.

Due process requires that a defendant understand the nature of his plea. "A trial court has the constitutional duty to ensure that a Defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences." (People v Ford, 86 NY2d 397, 402 [1995]). The Court's discretion to vacate judgments is limited to those grounds enumerated in CPL § 440.10[1]. "Subsequent to sentencing, a plea may not be withdrawn, and a judgment of conviction may only be vacated upon a legal ground specified in CPL § 440.10[1]." (People v Reyati, 254 AD2d 199 [1st Dept 1998]).

A defendant's right to effective assistance of counsel is guaranteed by both the Federal and New York State Constitutions (See Strickland v Washington, 466 US 668 [1984]; People v Turner, 5 NY3d 476, 479 [2005]; People v Berroa, 99 NY2d 134, 138 [2002]; see also US Const., 6th Amend; NY Const., art 1, § 6; CPL § 440.10[1][h]). Effective assistance of counsel under New York constitutional law requires that the Defendant be afforded "meaningful representation." (See People v Turner, 5 NY3d at 480; People v Henry, 95 NY2d 563, 565 [2000]). " So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation,' a defendant's constitutional right to the effective assistance of counsel will have been met."(People v Henry, 95 NY2d at 565, quoting People v Baldi, 54 NY2d 137, 147 [1981]; see also People v. Cason, 90 AD3d 777 [2d Dept 2011]).Further, there is a strong presumption of effective assistance of counsel that a defendant must overcome in order to prevail on his CPL 440.10 motion (See People v. Birch, 284 AD2d 405 [2nd Dept 2001] lv denied 96 NY2d 916 [2001] citing People v. Baldi, 54 NY2d 137 [NY 1981]; People v. Myers, 220 AD2d 461 [2nd Dept 1995] lv denied 87 NY2d 905 [1995]).

The Federal Standard for Determining Ineffective Assistance of Counsel

In Strickland v. Washington (466 US 668 [1984]), the Supreme Court laid out a two pronged test for determining a defendant's claim that he was denied his right to effective assistance of counsel due to the actions of his attorney: "First, the Defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed to a Defendant by the Sixth Amendment. Second, a Defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the Defendant of a fair trial, a trial whose result is reliable." (Strickland at 687; see also People v Turner, 5 NY3d at 481; See United States v Caracappa, 614 F3d 30, 46 [2d Cir 2010]).

Under the first prong of the Strickland test, in order to establish that he was denied his right to effective assistance of counsel, the defendant must show that defense counsel's performance was not reasonable under the prevailing professional norms. (Strickland at 688; see also Padilla v. Kentucky, 130 S Ct 1473, 1482 [2010]). Under the Strickland test, an unsuccessful defense strategy does not by itself constitute ineffective counsel. In scrutinizing a defendant's counsel's performance, the Court must be highly deferential and cannot second-guess counsel's assistance after a conviction just because counsel's defense was ultimately unsuccessful (Strickland at 688). [*8]

The second prong of the Strickland test requires that a defendant "affirmatively prove prejudice", meaning that even if a defendant establishes that his counsel's errors were "professionally unreasonable", the conviction will not be set aside if said errors had no effect on the judgment (Strickland at 692-693). "The Defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome" (Strickland at 694; see also United States v Caracappa, 614 F3d at 46; People v Stultz, 2 NY3d 277, 283 [2004]).

The New York State Standard for Determining Ineffective Assistance of Counsel

To determine whether a defendant is denied his right to effective assistance of counsel as provided under the New York State Constitution, the New York Court of Appeals has adopted the first prong of the federal Strickland test (See People v. Turner, 5 NY3d 476 [2005]).

However, in place of the federal requirement that a defendant show actual prejudice, the courts under the New York State Constitution have adopted a broader "meaningful representation" test (People v. Turner, 5 NY3d 476 [2005]). "[T]o establish ineffective assistance, a Defendant must demonstrate the absence of strategic or other legitimate explanations' for counsel's allegedly deficient conduct" (People v. Caban, 5 NY3d 143, 152 [2005] citing People v Rivera, 71 NY2d 705, 709 [NY1988]). The "meaningful representation" test is more favorable to a defendant in that it "focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case" (People v. Ozuna, 7 NY3d 913, 915 [2006]). The state standard for determining meaningful representation "does not require a Defendant to fully satisfy the prejudice test of Strickland,'" however under the "meaningful representation test" the courts will regard a Defendant's showing of prejudice as a significant but not indispensable element in assessing meaningful representation'" (People v. Caban at 155-156 [2005] citing People v. Stultz, 2 NY3d 277, 283 [2004]). As such, under the New York State Constitution "even in the absence of a reasonable probability of a different outcome, inadequacy of counsel will still warrant reversal whenever a Defendant is deprived of a fair trial." (People v. Caban, supra). The Court of Appeals has recognized that the standard for effective assistance of counsel "is not stringent that it is in fact undemanding' and, in applying it, we have often tolerated errors by counsel where the overall representation was nonetheless capable of characterization as meaningful'" (People v. Borrell, 12 NY3d 365 [2009] citing People v Turner, 5 NY3d 476, 482 [2005]).

In Padilla v. Kentucky (130 S Ct 1473 [2010]) the United States Supreme Court found that in order to provide "effective assistance" defense counsel was required to advise a client regarding the risk of deportation as a possible result of entering a guilty plea.

In Padilla v. Kentucky (130 S Ct 1473 [2010]), the United States Supreme Court found that defense counsel must advise clients regarding the risk of deportation as a consequence of entering a guilty plea. The United States Supreme Court found that a defense counsel's failure to inform a non-citizen defendant of the "truly clear" deportation consequences of pleading guilty to a particular charge prior to the defendant pleading guilty to said charge constituted a "constitutional deficiency" sufficient to satisfy the first prong of the Strickland standard i.e. that defense counsel's representation "fell below an objective standard of reasonableness" (See Padilla v. Kentucky, 130 S Ct 1473, 1482-1484 [US 2010]). Upon showing he was not so advised prior to entering a guilty plea, a defendant is entitled to relief if he can also satisfy the [*9]second prong of the Strickland standard by establishing prejudice, that is but for the plea the Defendant would not have been deported (See Padilla v. Kentucky, 130 S. Ct 1473, 1483 [US 2010]).

The Court will now evaluate the Defendant's claims under both the Strickland and New York State standards for determining ineffective assistance of counsel, and determine to what extent the Supreme Court's ruling in Padilla v. Kentucky is applicable to the instant motion.

In the instant action the Defendant argues that his prior attorney's failure to advise him resulted in two forms of prejudice: "potential" deportation and a bar on his eligibility for full citizenship. Neither of these argued forms of prejudice clearly falls within the scope of Padilla v. Kentucky.

As a general approach, this Court normally evaluates claims of ineffective assistance of counsel under the Strickland and New York State standards by first addressing the "reasonable performance" prong for both standards before moving to the second "prejudice" prong of the Strickland standard and the "meaningful representation" prong of the New York State standard. However, given the nature of the "prejudices" alleged by the Defendant in the instant motion, this Court will first address the "prejudice" and "meaningful representation" issues before evaluating the whether or not prior counsel's performance fell below an objective standard of reasonableness.

In the instant motion the Defendant argues that as a result of his prior attorney's failure to advise him of potential immigration consequences prior to his plea, the Defendant is now barred from full citizenship and subject to "potential" deportation. However, given the specific facts alleged by the Defendant, neither of these prejudices clearly fall within the scope of Padilla v. Kentucky. Specifically, the Defendant's status as a legal resident of the United States for the last 17 years since his conviction and the lack of any removal proceedings previously or currently pending against him significantly distinguishes him from the petitioner in Padilla v. Kentucky and the vast majority of movants on 440.10 motions made pursuant to Padilla v. Kentucky. Further, the Defendant's argument that he was prejudiced as to his eligibility for citizenship does not fall within the scope of the prejudice recognized by Padilla v. Kentucky.

Given that the Defendant has been a legal resident of the United States for seventeen years following his conviction for Penal Law §130.55 and the fact that no deportation and/or removal proceedings have been taken against him despite ICE's knowledge as to his immigration status, it is unclear whether or not the "possibility of deportation" falls within the type of prejudice addressed in Padilla v. Kentucky.

In Padilla v. Kentucky, the Supreme Court found that an attorney's failure to advise a client as to the "truly clear" deportation consequences of pleading guilty to a particular charge constituted a "constitutional deficiency" sufficient to satisfy the first prong of the Strickland standard (See Padilla v. Kentucky, 130 S. Ct 1473, 1482-1484 [US 2010]). However, the Supreme Court made no ruling as to the second prong of Strickland and referred the matter back to the Kentucky courts to determine if the Defendant was prejudiced by his counsel's failure to advise him as to deportation.[FN6] Specifically, the Supreme Court made no ruling as to what [*10]evidentiary proof would be required to establish that Padilla was actually prejudiced by being subject to "truly clear" deportation consequences.

This Court has previously decided two 440.10 motions to dismiss on the basis of ineffective assistance of counsel relating to defense counsel's alleged failure to advise a Defendant of the immigration consequences of pleading guilty to a charge (See People v. Eigner 2011KN031950 [NY City Crim Ct, Kings County]; People v. Roselien 2010KN011627 [NY City Crim Ct, Kings County]). In both cases, deportation proceeding were pending against the defendants and the defendants were being detained pending the outcome of said proceedings. Further, upon a review of the New York State court cases wherein a Defendant has moved to vacate a conviction pursuant to CPL 440.10 on the basis of Padilla v. Kentucky, this Court can find no jurisdictionally authoritative cases indicating that a Defendant was able to establish prejudice despite the fact that no deportation proceedings had been commenced. In point of fact, a significant number of cases wherein a Defendant moved to vacate a conviction pursuant to CPL 440.10 on the basis of Padilla v. Kentucky explicitly state that the deportation proceedings had been commenced against the Defendant, include some indication that ICE had begun deportation procedures, indicate that the Defendant was currently incarcerated by ICE or at very least indicate that the Defendant was on notice that he/she had to appear before the Immigration Court for possible removal (See People v Marino-Affaitati, 88 AD3d 742, 744 [2nd Dept 2011]; People v Williams, 72 AD3d 1347, 1348 [NY App. Div. 3d Dept 2010]; People v Noriega, 2012 NY Slip Op 50514[U] [Sup Ct, NY County Mar. 19, 2012]; People v Llorente, 34 Misc 3d 1225[A] [Sup Ct, Queens County 2012]; People v Alegria, 2012 NY Slip Op 30562[U] [Sup Ct, Kings County 2012]; People v Delcastillo, 34 Misc 3d 1207[A] [Sup Ct, Bronx 2012]; People v Gooden, 34 Misc 3d 1210[A] [Sup Ct, Bronx County 2012]; People v Ortiz, 2011 NY Slip Op 33598[U] [Sup Ct, Kings County 2011]; People v Asantena, 2011 NY Slip Op 33594[U] [Sup Ct, Kings County 2011]; People v Rodriguez, 2011 NY Slip Op 33586[U] [Sup Ct, Kings County 2011]; People v Worklis, 2011 NY Slip Op 33587[U] [Sup Ct, Kings County 2011]; People v Gasperd, 33 Misc 3d 1228[A] [Sup Ct, King County 2011]; People v Saint-Fermin, 2011 NY Slip Op 335842[U] [Sup Ct, Kings County 2011]; People v Quing Lin Zeng, 33 Misc 3d 1213[A] [Crim Ct, NY County 2011]; People v Thomas, 2011 NY Slip Op 33571[U] [Sup Ct, Kings County 2011]; People v. Bautista, 33 Misc 3d 1209A [Sup Ct, Bronx County 2011]; People v Williams, 2011 NY Slip Op 33490[U] [Sup Ct, Kings County 2011]).[FN7]

Further, multiple courts within this county have decided against the defendants on 440.10 motions where deportation proceedings had not been commenced and/or there was a significant period between the defendants' convictions and the motions to vacate. Specifically, courts have found that the lack of active deportation proceedings puts into question whether or not a [*11]defendant has shown "prejudice" sufficient to meet the second prong of the Strickland standard. In People v. Coles (2011 NY Slip Op 31275[U] [Sup Ct, Kings County May 4, 2011]) the court found that where the defendant was no longer facing deportation as a result of an Immigration Court's ruling granting him deferral of removal, the defendant had not suffered any prejudice as a result of of his counsel's alleged failure to advice him of possible deportation. In People v Forbes (32 Misc 3d 1225[A] [Sup Ct, Kings County 2011]), the same court found that, although not dispositive on the issue, the fact that the defendant was not currently in danger of deportation and had waited so long to make a CPL 440.10 motion "certainly [did] not bolster the defendant's credibility".

Perhaps most damaging to the instant Defendant's argument that he was "prejudiced" by his prior attorney's alleged failure to advise him, is the court's finding in People v DeLacruz (2011 NY Slip Op 33588[U] [Sup Ct, Kings County 2011]). In said case, the court found that the "possibility of immigration consequences" was insufficient to satisfy the second prong of the Strickland standard. Specifically, the court found that in the absence of anything in the defendant's papers to support his claim, the defendant's affirmation that he had been advised by "immigration agents" that his documents would be forwarded to the Immigration and Naturalization Service for the initiation of potential deportation proceedings was of little to no value (See People v DeLacruz (2011 NY Slip Op 33588[U] [Sup Ct, Kings County 2011]). The court further emphasized in DeLacruz that in the thirteen years between the defendant's arrest and his plea, he suffered no immigration consequences and that for the five years he was on probation following his plea he also suffered no immigration consequences. The DeLacruz court found that the lack of any immigration consequences in the twenty years between the defendant's arrest and his motion to vacate "only goes to demonstrate that the advice he received at the time of the plea was both adequate and sufficiently correct" (See People v DeLacruz 2011 NY Slip Op 33588[U] [Sup Ct, Kings County 2011]). The court found that given the lack of any evidence that the defendant previously suffered or was currently suffering immigration consequences, the defendant's affirmations were unsupported by evidentiary facts (See People v DeLacruz, supra).

This Court recognizes that the instant motion is not identical to the cases so cited, however there are significant similarities to draw into question whether or not the Defendant has submitted sufficient proof to establish that he is prejudiced as a matter of fact and whether or not the "potential for deportation" falls within the type of prejudice envisioned by Padilla v. Kentucky as a matter of law. Specifically, in the instant motion the Defendant has submitted no basis other than his current attorney's affirmation and his own affidavit to establish that he is subject to deportation as a result of his plea. Further, the Defendant has been a legal resident of the United States for the past 18 years, during which no deportation proceedings have been commenced against him, nor has he ever received any notice from ICE to said effect. During the past 18 years the Defendant made an Application for Naturalization in 1997 that was denied by Decision dated April 1, 2000, which specifically indicated that Immigration and Naturalization Services were aware of the Defendant's conviction of Penal Law §130.55 based upon his plea. Further, the Defendant also successfully renewed his green card in 2001. Therefore, the Immigration and Naturalization Service has been aware of the Defendant's immigration status and his conviction since at least April of 2000, and still granted the Defendant's application to renew his green card in 2001. Further, ICE has not commenced any deportation proceeding against the Defendant in the past 15 years since his application for naturalization, nor is there [*12]any indication that they will do so in the immediate future.

Upon review of the alleged facts in the instant motion to vacate, this Court finds that the Defendant has at most established that he faces the "possibility of deportation", based solely upon his Counsel's reading of the current immigration laws (See 8 USC 1227[a][2][A][iii]) and the alleged advice received from an "immigration attorney".[FN8] Whether or not this "possibility of deportation" as a matter of law falls within the type of prejudice addressed in Padilla v. Kentucky i.e. "truly clear" deportation consequences, is a question that need not be addressed by this Court on the instant motion. However, the Court does find that even assuming arguendo that this "possibility of deportation" falls within the type of prejudice addressed in Padilla v. Kentucky, the Defendant has not submitted enough evidentiary facts to support his claim that he is potentially subject to deportation. Specifically, apart from the Defendant and his attorney's affirmations that the Defendant was informed by his "immigration attorney" that he was subject to deportation based upon his plea, the Defendant has submitted no evidentiary proof that he is currently subject to deportation. Given the facts that the Defendant remains a legal resident of the United States, successfully renewed his green card in 2001 and that no deportation proceeding have been initiated against him in the past 18 years since his plea, this Court finds that the Defendant's unsupported conclusory affirmations are insufficient to establish prejudice under the second prong of the Strickland standard (See People v DeLacruz 2011 NY Slip Op 33588[U] [Sup Ct, Kings County 2011]).

The Defendant's argument that the conviction of Penal Law §130.55 bars him from citizenship does not fall within the scope of Padilla v. Kentucky as a direct consequence of his plea and/or the type of "prejudice" that can be a basis for ineffective assistance of counsel under the second prong of the Strickland standard.

In Padilla v. Kentucky, the Supreme Court addressed a single type of "immigration consequence", deportation, as a direct consequence of a defendant's guilty plea. To this end the Supreme Court described in significant detail the amendments to the immigration laws in 1996 that confirmed the Court's view that "as a matter of Federal Law, deportation is an integral partindeed, sometimes the most important part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes." (Padilla v. Kentucky, 130 S. Ct 1473, 1480 [2010]). The Court specifically indicated that "deportation is a particularly severe penalty'" and that "recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders" (Padilla v. Kentucky, 130 S. Ct 1473, 1481 - 1482 [2010]). Significantly, the Supreme Court distinguished deportation as a unique consequence that does not fall within the distinction between collateral and direct consequences of criminal conviction (See Padilla v. Kentucky, 130 S. Ct 1473, 1481 [2010]).

The majority opinion in Padilla v. Kentucky makes no reference to any other "immigration consequences" other than deportation, while distinguishing deportation as unique [*13]from other "consequences" of conviction. Significantly, there is no reference in Padilla v. Kentucky to potential "bars to citizenship" based upon guilty pleas nor any indication that the Supreme Court viewed potential "bars to citizenship" as a "consequence" of guilty pleas on par with deportation. As Padilla v. Kentucky makes no mention of "bars to citizenship", this Court finds that the Defendant's reliance upon Padilla v. Kentucky in arguing that potential "bars to citizenship" constitute prejudice under the second prong of the Strickland standard is misplaced.

Upon an examination of the published New York State case law, this Court can find no jurisdictionally authoritative cases standing for the principle that the reasoning in Padilla v. Kentucky should be applied to potential "bars to citizenship" due to guilty pleas. Neither has Defendant's Counsel cited to any cases in her submitted papers that stand for the proposition that the Defendant can viably claim ineffective assistance of counsel based solely upon the allegation that he is now bared for citizenship. As such, the Defendant has not presented any substantive case law to support his position that the reasoning in Padilla v. Kentucky should be extended to instances where a defendant is barred from citizenship based upon a guilty plea.

Further, this Court recognizes that there are significant distinctions between deportation and "bars to citizenship" as a "consequence" of conviction. In Padilla v. Kentucky the Supreme Court recognized that deportation was unique in that it was both a nearly automatic and severe consequence of certain criminal convictions for noncitizens (Padilla v. Kentucky, 130 S. Ct 1473, 1481 [2010]). Said descriptors do not apply in the same capacity to "bars to citizenship". Specifically, the "automatic" nature of deportation is not similarly applicable to "bars to citizenship" since any "bars to citizenship" are effectively moot unless a Defendant actually applies for citizenship. If a defendant does not choose to ever apply for citizenship, then any "bar to citizenship" arguably caused by their guilty plea is effectively inconsequential. The fact that the "consequence" of "bars to citizenship" hinges upon a defendant's choice to actively pursue citizenship significantly distinguishes "bars to citizenship" from deportation, which is largely automatic regardless of any actions that a defendant may choose to take. Therefore, "bars to citizenship" cannot be said to have the same "automatic" effect as deportation as a "consequence" of conviction.

"Bars to citizenship" as a "consequence" of conviction are also significantly less severe than deportation. The Supreme Court recognizes deportation to be a particularly severe "consequence" of conviction as it can and does result in the separation of families and "banishment or exile" from the United States (Padilla v. Kentucky, 130 S. Ct 1473, 1484 [2010]). However, "bars to citizenship" do not necessarily imply these same dire results. Numerous individuals are allowed to lawfully reside within the Unites States as lawful residents without the benefit of full citizenship. Further, lawful residence within the United States is neither so precarious nor short term as to constitute a dire effect on par with deportation. In point of fact, the Defendant in the instant case has been living as a lawful permanent resident of the United States for the last twenty-one years and made at least one successful green card application in or around 2001. In addition, he has married, attended college, raised a family, bought a home and been gainfully employed since 1997. Said situation cannot be equated with the severe consequences of deportation.

Further, the severity of the "consequences" of "bars to citizenship" are entirely dependant upon a defendant's intentions at the time of conviction. It is reasonable to assume that the vast majority of noncitizens residing in the US would view deportation as a severely negative consequence of conviction. The same cannot be said of "bars to citizenship". Specifically, in [*14]the absence of any showing that a defendant intended to pursue full citizenship at the time of his conviction, said defendant cannot establish that he endured any consequences as the result of a potential "bar to citizenship" or that he in any way considered potentially being barred from full citizenship as a detriment when he took the plea (See People v Coelho, 31 Misc 3d 1230[A] [Sup Ct, Nassau County 2011] [Although the defendant indicated to the court that he would not have entered into the plea had he known that it would effect his future abilities to "regularize" his status in the United States, there was no basis for the court to conclude that the defendant had said concerns at the time he entered the plea 14 years prior to the motion to vacate]). The effect and severity of potential "bars to citizenship" upon a defendant are necessarily dependant upon said defendant's intentions at the time of conviction. Therefore, said effects are too speculative to be equated with the severe direct effects of deportation. As such, this Court finds that bars to full citizenship as a result of conviction do not fall within the scope of Padilla v. Kentucky as a type of prejudice on par with deportation and that in the absence of further evidentiary allegations, a defendant's claim that he is barred from full citizenship cannot be the sole basis for establishing prejudice under the second prong of the Strickland standard.

In the instant motion, the Court finds that the Defendant has failed to establish that he was prejudiced based upon an alleged bar to full citizenship. Although the Defendant made an application for naturalization in 1997, more than two years after his conviction of Penal Law §130.55, there is no indication that the Defendant had any intention to pursue full citizenship at the time he plead guilty to Penal Law §130.55. In particular, although the Defendant indicates that he has been a lawful resident of the United States since July 1991, there is no indication that he made any applications for naturalization prior to his 1995 conviction, nor does the Defendant affirm that he informed his attorney prior to his plea that he intended to apply for full citizenship. Further, the Defendant has offered no substantive explanation as to why he waited 11 years from the denial of his application for naturalization in 2000 to allegedly consult an "immigration attorney" about reapplying for full citizenship. Although Defendant's Counsel affirms that the Defendant considered his 1994 conviction "a mere hurdle that would be cleared with the passage of time" (Defendant's response to People's opposition to Motion to Vacate p. 8), said explanation does little to explain why the Defendant apparently waited 11 years before taking any further action towards naturalization. Taken together with the lack of evidentiary proof that the Defendant took any steps towards naturalization and/or informed his attorney that he intended to apply for naturalization prior to his 1994 plea to Penal Law §130.55, the Defendant's 11 year delay in reapplying for full citizenship suggests that the Defendant had no intention of applying for full citizenship when he plead guilty to Penal Law §130.55 on November 10, 1994.

The Court further notes, that just as with the Defendant's claim that he is subject to potential deportation, the Defendant's claim that he is now effectively barred for full citizenship is based solely upon his Counsel's reading of the immigration laws and advice allegedly provided by an "immigration attorney". The Defendant has submitted no documents or letters from Immigration and Naturalization Services indicating that he is barred from ever being granted full citizenship. In point of fact, the 2000 Decision denying his application for naturalization specifically indicates the denial was "without prejudice to [his] filing an application for citizenship when [he] become[s] eligible under the applicable provisions of the Act". Said language specifically leaves open the possibility of the Defendant reapplying for citizenship and of the Defendant later becoming eligible for citizenship. Further, although the Decision indicates that the Immigration and Naturalization Services were aware of the [*15]Defendant's conviction of Penal Law §130.55 and that the Defendant's application was denied for failure to establish "good moral character", there is no indication that but for said conviction the Defendant would have been found to have "good moral character" or that the Defendant would have otherwise been granted full citizenship.

In the absence of any evidentiary proof that the Defendant intended to apply for full citizenship and/or that he informed his attorney of said intention prior to pleading guilty to Penal Law §130.55, the Court finds that the Defendant has failed to satisfy the second "prejudice" prong of the Strickland standard based upon the alleged bar to full citizenship.

Even assuming arguendo that the "possibility of deportation" and "bars to citizenship" fall within the scope of Padilla v. Kentucky and the Defendant had otherwise submitted sufficient evidentiary proof to establish that he was subject to said consequences due to his plea, the Defendant has still failed to show that he would not have plead guilty to Penal Law §130.55 had he been informed of the potential immigration consequences.

In the instant action, even assuming arguendo that the "possibility of deportation" and "bars to citizenship" fall within the scope of Padilla v. Kentucky the Defendant has failed to show that he was "prejudiced" under the Strickland standard and/or that he was denied "meaningful representation" under the New York State standard. The Defendant has submitted no basis apart from his own statement and his Counsel's affirmation to establish that he would not have plead guilty had he been properly advised as to the potential immigration consequences of doing so. The Defendant's self-serving, conclusory and unsupported statement that he would not have pled guilty had he been properly advised about immigration consequences are insufficient to establish the essential facts for relief (See CPL § 440.30[4][b]; People v Ozuna, 7 NY3d at 915; People v Cristache, 29 Misc 3d 720, 740 [Crim Ct, Queens County 2010]; People v Wong, 29 Misc 3d 1227[A] [Crim Ct, Queens County 2010]). Further, although Defendant's counsel characterizes the People's case against the Defendant as weak, it is significant to note that the Defendant does not claim innocence to the original charges against him, the charge he plead guilty to, nor does he set forth any viable defenses (See People v. Hayes, 186 AD2d 268 [2nd Dept 1992] citing United States v. Tiler, 602 F.2d 30 [2d Cir NY 1979]; see also People v. Clark, 254 AD2d 299 [2nd Dept 1998]; People v. DeFayette, 241 AD2d 761 [3rd Dept 1997] lv denied 90 NY2d 939 [NY 1993]; People v Picca, 29 Misc 3d 997 [Sup Ct, Kings County 2010]). The Defendant's self-serving affidavit to the contrary, there is nothing in the Defendant's submitted papers to establish with reasonable probability that the Defendant would have insisted on going to trial had his attorney informed him of the potential deportation consequences or that he would have been acquitted or received a lesser sentence had he done so (See People v. Guretzky, 274 AD2d 524 [2nd Dept 2000]; People v Harding, 30 Misc 3d 1237[A] [Crim Ct, New York County 2011]; People v Cristache, 29 Misc 3d at 743).

Upon review of the submitted papers, the Court also finds that Defendant's prior counsel provided him with "meaningful representation" under the New York State standard of effective assistance of counsel. In the instant criminal action the Defendant was originally charged with violating Penal Laws §§ 130.35 [1] - Rape in the First Degree (Class B Violent Felony); 130.65[1] - Sexual Abuse in the First Degree (Class D Violent Felony) and 260.10[1] - Endangering the Welfare of a Child (Class A Misdemeanor). As a Class B Violent Felony, Penal Law 130.35[1] caries a potential sentence of least five years and up to twenty-five years incarceration (See Penal Law 70.02[3][a]). As a Class D Violent Felony, Penal Law 130.65[1] carries a potential sentence of at least two years and up to seven years incarceration (See Penal [*16]Law 70.02[3][a]). As a Class A Misdemeanor Penal Law 260.1[a] carries a potential sentence of up to one year incarceration. The plea agreement negotiated by Defendant's counsel resulted in an extremely favorable disposition whereby the People dropped both of the Violent Felony charges and the Class A Misdemeanor. Further, the Defendant was allowed to plead to the single Class B Misdemeanor charge of Penal Law §130.55 and was sentenced to one year of probation.

Accordingly, this Court finds that the Defendant has failed to establish that he was prejudiced under the Strickland standard or denied "meaningful representation" under the New York State standard for effective assistance of counsel.

Even assuming arguendo that the Defendant could establish that he was prejudiced by his attorney's alleged failure to advise him under the second prong of the Strickland standard and denied meaningful assistance of counsel under the New York State standard, he has failed to establish that his prior attorney's representation fell below the objective standard of reasonableness that existed at the time the Defendant plead guilty to Penal Law §130.55.

Having addressed the second "prejudice" prong of the Strickland standard and the "meaningful representation" prong of the New York State standard for effective assistance of counsel, the Court will now address the first "objective standard of reasonableness" prong for both standards.

As of the date of the instant decision there has yet to be a uniform determination as to the retroactive application of Padilla v. Kentucky within the courts for the State of New York and/or the Federal Circuit Courts. Amongst the Federal Circuit Courts, the retroactive application of Padilla v. Kentucky remains an open question, with the Seventh and Tenth Circuits holding that Padilla v. Kentucky does not have retroactive effect, and only the Third Circuit holding that Padilla v. Kentucky has retroactive application (See Hill v. Holder, 2012 US App. LEXIS 336 [2nd Cir 2012]; Chaidez v. United States, 655 F3d 684 [7th Cir Ill 2011]; United States v. Chang Hong, 2011 US App. LEXIS 18034 [10th Cir Okla 2011]; United States v. Orocio, 645 F3d 630 [3d Cir NJ 2011]). Multiple lower federal courts have also held that Padilla v. Kentucky is not retroactively applied (See United States v. Martinez, 2012 US Dist. LEXIS 7899 [D Mass 2012]; United States v. Agoro, 2011 US Dist. LEXIS 140476 [D RI 2011]; United States v. Garcia, 2011 US Dist. LEXIS 122224 [MD Fla 2011]; Sarria v. United States, 2011 US Dist. LEXIS 120982 [SD Fla 2011]; Emojevwe v. United States, 2011 US Dist. LEXIS 126932 [MD Ala 2011]; United States v. Cervantes-Martinez, 2011 US Dist. LEXIS 108907 [SD Cal 2011]; United States v. Abraham, 2011 US Dist. LEXIS 99181 [D Neb 2011]).

At the state level, several courts have also held that Padilla v. Kentucky is not retroactive (See

People v Feliciano, 31 Misc 3d 128[A] [App Term, 1st Dept 2011] lv denied 16 NY3d 894 [NY 2011]; People v Llorente, 34 Misc 3d 1225[A] [Sup Ct, Queens County 2012); People v Malcolm, 2011 NY Slip Op 33460[U] [Sup Ct, Kings County Aug. 30, 2011]; People v Garcia, 32 Misc 3d 1232[A] [Sup Ct, NY County 2011]; People v. Paredes, 29 Misc 3d 1202[A] [Sup Ct, 2010]; People v. Kabre, 29 Misc 3d 307 [Crim Ct, NY County 2010]; People v Ebrahim, 2010 NY Slip Op 32794[U] [Sup Ct, Wayne County 2010]), while other courts have held that Padilla v. Kentucky does have retroactive application (See People v Nunez, 30 Misc 3d 55 [App Term, 2nd Dept 2010]; People v Alegria, 2012 NY Slip Op 30562[U] [Sup Ct, Kings County Jan. 25, 2012]; People v Bennett, 28 Misc 3d 575, 578 [Crim Ct, Bronx County 2010]). Further, there is a recognition that there is a divergence of judicial opinion at the state level as to the [*17]retroactivity of Padilla v. Kentucky (See People v Gasperd, 33 Misc 3d 1228[A] [Sup Ct, Kings County 2011; see also People v Marino-Affaitati, 88 AD3d 742 [2d Dept 2011][declining to address the question of retroactivity]).

This Court does recognize that in People v Nunez (30 Misc 3d 55 [App Term, 2nd Dept 2010]), the Appellate Term, Second Department for the Ninth and Tenth Districts held that Padilla v. Kentucky is to be applied retroactively, and that the decisions of the Appellate Term for the Ninth and Tenth Districts have been given great deference by other New York City Criminal Courts within Kings County (See People v. Gundarev, 25 Misc 3d 1204[A] [Crim Ct, Kings County 2009]). However, People v Nunez is distinguishable from the instant criminal matter since the defendant in People v Nunez plead guilty in 1997, after certain amendments to the immigration statutes, while the Defendant in the instant case plead guilty in 1994, prior to said amendments. This Court will now elaborate upon the significance of this distinction as it applies to the retroactive effect of Padilla v. Kentucky.

Among those cases wherein the courts determined that Padilla v. Kentucky is not entirely retroactive, several courts have found that Padilla v. Kentucky only has a retroactive effect as to those pleas taken between the 1996 amendment to the immigration law and the issuance of the decision in Padilla v. Kentucky in 2010. (See People v Garcia, 32 Misc 3d 1232[A] [Sup Ct, NY County 2011]; People v. Paredes, 29 Misc 3d 1202[A] [Sup Ct, NY County 2010]). Other courts have also specifically found that an attorney's effectiveness should be judged as of the time of the representation and not based upon any retroactive application of Padilla v. Kentucky (See People v. Kabre, 29 Misc 3d 307 [Crim Ct, NY County 2010]; People v Ebrahim, 2010 NY Slip Op 32794[U] [Sup Ct, Wayne County 2010]).

Recently, the United States District Court for the Southern District of New York rendered a decision that sheds significant light upon determinations of the retroactive effect of Padilla v. Kentucky. In Medina v. United States (2012 US Dist. LEXIS 34467 [SD NY 2012]), the District Court found that even if Padilla v. Kentucky did have a retroactive effect, said effect could not extend to pleas taken before 1996 and possibly 1995. The Circuit Court reasoned that prior to the 1996 amendments to the immigration law, the "prevailing professional norms" had not yet recognized advice on immigration consequences as necessary to the representation of a criminal defendant considering a guilty plea (Medina v. United States, supra). The Circuit further reasoned that "[t]he rule announced in Padilla cannot reach back further than the laws and conditions that, arguendo, dictated it" (Medina v. United States, supra).

Although the District Court's determinationis not jurisdictionally binding upon this Court, this Court finds the reasoning applied in Medina v. United States as to the limited retroactive effect of Padilla v. Kentucky to be sound and correct. The US Supreme Court's determination in Padilla v. Kentucky that counsel's failure to advise Padilla of potential deportation consequences fell "below an objective standard of reasonableness" was based significantly upon the 1996 amendments to the immigrations laws, which made deportation a "truly clear" and a nearly automatic consequence of pleading guilty to certain charges. The Supreme Court further stated that "[f]or at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client's plea" (Padilla v. Kentucky, 130 S Ct 1473, 1485 [ 2010]). It is clear from the Supreme Court's decision that the professional norms included an obligation on counsel to provide advice on the deportation to defendants where deportation was a possible consequence of pleading guilty and that given the amendments to the immigration law, deportation was a [*18]clear consequence of the Padilla's guilty plea. Significantly, the Supreme Court did not abandon the Strickland objective standard of reasonableness, but found that where deportation consequences to pleading guilty are clear, an attorney's failure to advise his client accordingly, falls "below an objective standard of reasonableness". However, the Supreme Court did not find that where deportation consequences of pleading guilty are not clear that an attorney's failure to advise his client accordingly also falls "below an objective standard of reasonableness".

Under the first prong of the Strickland and New York State standards, in order to establish that a Defendant was denied his right to effective assistance of counsel, a Defendant must show that defense counsel's performance was not reasonable under the prevailing professional norms. In the instant case, the Defendant plead guilty to Penal Law §130.55 in 1994, before the amendments to the immigration law that he now argues make him subject to deportation based upon said plea. Therefore, at the time the Defendant plead guilty to Penal Law §130.55 (as allegedly encouraged by his then counsel), the 1996 amendments to the immigration law that made deportation a clear and automatic consequence of pleading guilty were not yet implemented, and he was not subject to automatic or clear deportation consequences. Prior to the 1996 amendments to the immigration law that made deportation a clear and automatic consequence of pleading guilty to Penal Law §130.55 (as argued by the Defendant), this Court does not find that it was unreasonable under the then prevailing professional norms for defense counsel not to inform the Defendant that deportation was a necessary consequence of pleading guilty to Penal Law §130.55. It would be unreasonable to require attorneys to advise their clients as to all "potential" amendments to the then current applicable statutes even where said statutes are later amended to the arguable detriment of said clients. In determinating effective assistance of counsel, a counsel's efforts should not be second-guessed with the clarity of hindsight (See People v. Turner, 5 NY3d 476 [2005]).

Therefore, without addressing the retroactive effect that Padilla v. Kentucky may have on pleas taken after the relevant 1996 amendments to the immigration statutes, this Court finds that Padilla v. Kentucky at the very least has no retroactive effect on pleas taken before said amendments were made. Specifically, this Court finds thatthe US Supreme Court's determination in Padilla v. Kentucky that an attorney falls below the objective standard of reasonableness by failing advise a client as to clear and automatic deportation consequences of pleading guilty, does not retroactively apply to pleas taken before the 1996 amendments to the immigration statutes that made deportation a clear automatic consequence of conviction.

As the Defendant in the instant case plead guilty to Penal Law §130.55 in 1994, prior to the relevant amendments to the immigration laws, he has failed to show that his prior attorney's alleged failure to advise him as to potential deportation fell below the professional norms as they existed at the time of his plea. Therefore, the Defendant has failed to establish that his prior counsel's representation "fell below the objective standard of reasonableness" for the purposes of establishing ineffective assistance of counsel under the Strickland and New York State standards.

For the reasons so stated, this Court finds that the Defendant has failed to present compelling legal arguments or submit sufficient evidentiary proof to establish that he was denied effective assistance of counsel under the federal Strickland standard or the New York State standard.

Accordingly, the Defendant's motion to vacate his plea of guilty to Penal Law §130.55 - [*19]Sexual Abuse in the Third Degree (Class B Misdemeanor) taken on November 10, 1994 and the judgment of conviction rendered against him on January 12, 1995 based upon said plea, is hereby denied without a hearing pursuant to CPL 440.13[4].

The foregoing constitutes the Order and Decision of the Court.

_________________April 13, 2012______________________

DateHON. Robert D. Kalish

Judge, Criminal Court Footnotes

Footnote 1: The Court notes that in the instant motion, the only substantive legal arguments presented by the Defendant concern the alleged "ineffective assistance of counsel" he allegedly received prior to pleading guilty to Penal Law §130.55 on November 10, 1994 due to his then attorney's alleged failure to advise him of the potential immigration consequences. Claims of ineffective assistance of counsel rest mainly upon matters dehors the record and as such fall within the scope of a motion pursuant to CPL 440.10 (See People v Rohlehr, 87 AD3d 603, 604 [2nd Dept 2011]; People v. Miller, 68 AD3d 1135 [2nd Dept 2009] lv denied 14 NY3d 803 [2010]). Therefore the only issue before this Court in the instant motion is whether or not the Defendant was denied his state and federal constitutional rights to effective assistance of Counsel and therefore entitled to vacatur of the plea and subsequent convection pursuant to CPL 440.10 [1][h]. Any other basis for the Defendant's argument that he did not knowingly, intelligently and voluntarily enter into the plea, which may be apparent from the record of the underlying case, may be a basis for a direct appeal and is not properly before this Court in the instant motion (See CPL440.10[2][b]).

Footnote 2: The Defendant has attached an affidavit by the current Supervising Court Reporter for the Criminal Court of Kings County indicating that the transcript of the Defendant's plea on November 10, 1994 could not be found and that in the normal course of business, criminal court notes are retained for a period of ten years.

Footnote 3: Upon reading the affirmation by Defendant's Counsel in the moving papers that she was unable to obtain either the minutes of the Defendant's plea or the court file for said criminal action, this Court gave Counsel the opportunity to contact the People and examine any materials that the People had that were copied from the original court file. Counsel was then allowed to submit papers to supplement the instant motion based upon her review of the People's materials. Defendant's Counsel also submitted additional papers to the People regarding the Defendant's background, which were attached with the Defendant's supplemental papers submitted to this Court.

Footnote 4: The Court notes that neither the Defendant nor the People have attached with the submitted papers a copy of the Defendant's green card renewal application from 2001 nor any documents prepared by the Defendant or received by the Defendant from the US immigration authorities as to said renewal. However, Defense Counsel does confirm in her reply to the People's opposition that the Defendant successfully renewed his green card in 2001 and that he will make a new application for renewal in 2013.

Footnote 5: Defendant's counsel cites to INS v. St. Cyr, (533 US 289 [2001]) wherein the Supreme Court held that noncitizens whose convictions were based upon a pleas taken before the amendments to the immigration laws removing the United States Attorney General's discretion to waive deportation under section 212[c] of the Immigration and Nationality Act, remained eligible for waiver under the then-effective 212[c] at the time of their plea (INA 212[c]).

Footnote 6: The Court notes that Justice Henry of the Court of Appeals of Kentucky specifically points out in his dissent inPadilla v. Commonwealth that Padilla had not made a showing that his deportation was imminent, or even that deportation proceedings against him had been commenced (Padilla v. Commonwealth 2006 Ky. App. LEXIS 98 [Ky. Ct. App. Mar. 31, 2006] (Henry Dissent)). This Court was unable to determine whether or not the Kentucky State courts issued any subsequent determination upon the referral of Padilla on the issue of prejudice.

Footnote 7: The Court notes that there are also numerous cases from the New York State courts determining CPL 440.10 motions that do not specifically indicate that the defendants were currently involved in deportation proceeding. However, the absence of any specific reference to deportation proceedings does not necessarily imply that said proceedings had not been commenced or that the defendants were not otherwise on notice of removal proceedings.

Footnote 8: The Court notes that although the Defendant's Counsel includes the "immigration attorney's" name in the moving papers, Counsel has not attached an affirmation by the "immigration attorney" in the submitted papers.