People v Mercado

People v Mercado 2014 NY Slip Op 07567 Decided on November 6, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 6, 2014
Gonzalez, P.J., Friedman, Acosta, Clark, JJ.
9756 1106/04

[*1]The People of the State of New York, Appellant,

v

Jose Mercado, Defendant-Respondent. Immigrant Defense Project, Amicus Curiae.

Robert T. Johnson, District Attorney, Bronx (Jason S. Whitehead of counsel), for appellant.

Jorge Guttlein & Associates, P.C., New York (Thomas E. Moseley of counsel), for respondent.

Immigrant Defense Project, New York (Dawn M. Seibert of counsel), for amicus curiae.

Order, Supreme Court, Bronx County (Leonard Livote, J.), entered on or about July 21, 2011, which granted defendant's CPL 440.10 motion to vacate a judgment of the same court (Maxwell Wiley, J. at plea; John P. Collins, J. at sentencing), rendered April 1, 2005, convicting defendant of criminal sale of a controlled substance in the fourth degree, and sentencing him to a term of five years' probation, unanimously reversed, on the law, and the judgment reinstated.

The judgment of conviction was vacated pursuant to Padilla v Kentucky (559 US 356 [2010]), which was decided after defendant's conviction had become final. In view of the Court of Appeals' determination that the Padilla rule will not be applied retroactively in the courts of this state (People v Baret, 23 NY3d 777 [2014]), we reverse the order granting defendant's CPL 440.10 motion and reinstate the judgment of conviction.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 6, 2014

CLERK