        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1046/13
KA 12-00969
PRESENT: SCUDDER, P.J., SMITH, FAHEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RONALD E. HOYER, DEFENDANT-APPELLANT.


LAW OFFICE OF MARK A. YOUNG, ROCHESTER (BRIDGET L. FIELD OF COUNSEL),
FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Supreme Court, Monroe County (Francis A. Affronti, J.), entered
April 12, 2012. The order denied the motion of defendant to vacate
the judgment of conviction pursuant to CPL 440.10.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from an order denying his motion
pursuant to CPL article 440 seeking to vacate the judgment convicting
him of attempted criminal sale of a controlled substance in the third
degree (Penal Law §§ 110.00, 220.39 [1]). Supreme Court properly
denied the motion. Defendant, a Canadian citizen who emigrated to the
United States in 1960 and is a permanent legal resident, was convicted
of that crime in 1991 and completed his sentence of probation in 1994.
He was arrested by Homeland Security officers in 2011 on the ground
that the 1991 conviction is an aggravated felony pursuant to 8 USC §
1101 (a) (43) (B) and thus, as an “alien who is convicted of an
aggravated felony at any time after admission, [he] is deportable” (8
USC § 1227 [a] [2] [A] [iii]). In support of his motion pursuant to
CPL 440.10 (1) (h), defendant contended that he was denied effective
assistance of counsel based upon defense counsel’s failure to advise
him that the conviction could result in deportation. Although the
Supreme Court concluded in Padilla v Kentucky (559 US 1473) that the
failure of defense counsel to advise a noncitizen defendant about the
potential for deportation constituted ineffective assistance of
counsel, it clarified in Chaidez v United States (559 US ___, ___, 133
S Ct 1103, 1105) that Padilla “does not have retroactive effect.”
Inasmuch as the Court of Appeals has concluded that there is no basis
to depart from the Supreme Court’s holding in Chaidez (see People v
Baret, ___ NY3d ___, ___ [June 30, 2014]), we reject defendant’s
                                 -2-                       1046/13
                                                         KA 12-00969

contention.

     With respect to defendant’s remaining contention that he also was
denied effective assistance of counsel based on defense counsel’s
failure to seek dismissal of the indictment pursuant to CPL 30.30, we
conclude that the court properly determined that defendant received
meaningful representation inasmuch as he received “an advantageous
plea and nothing in the record casts doubt on the apparent
effectiveness of counsel” (People v Ford, 86 NY2d 397, 404). We note
that, in People v Peque (22 NY3d 168, 195-196), the Court of Appeals
overruled “only so much of Ford as suggests that a trial court’s
failure to tell a defendant about potential deportation is irrelevant
to the validity of the defendant’s guilty plea,” and did not otherwise
disturb that part of Ford addressed to a defendant’s constitutional
right to effective assistance of counsel in the context of a guilty
plea (see People v Vargas, 112 AD3d 979, 980).




Entered:   July 11, 2014                        Frances E. Cafarell
                                                Clerk of the Court
