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

1026/13
KA 10-02281
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CORNELIUS JOHNSON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
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 Erie County Court (Michael F. Pietruszka, J.), entered September
20, 2010. The order denied the motion of defendant 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 criminal possession of marihuana in the fourth degree (Penal
Law § 221.15). We previously affirmed the order denying defendant’s
similar motion pursuant to CPL 440.10 (People v Johnson, 41 AD3d 1284,
lv denied 9 NY3d 877). We rejected defendant’s contention that he was
deprived of effective assistance of counsel based on defense counsel’s
failure to advise him that deportation was an automatic consequence of
a conviction (id. at 1285). After our decision was issued, the
Supreme Court decided Padilla v Kentucky (559 US 356, 374) wherein it
held that an attorney’s failure to advise a defendant of the
deportation consequences of a guilty plea constitutes ineffective
assistance of counsel. Based on Padilla, defendant brought this
current CPL 440.10 motion.

     We reject defendant’s contention that he was denied effective
assistance of counsel. After Padilla, the Supreme Court held in
Chaidez v United States (559 US ___, ___, 133 S Ct 1103, 1105) that
Padilla “does not have retroactive effect,” and the Court of Appeals
has found no basis to depart from the Supreme Court’s holding (see
People v Baret, ___ NY3d ___, ___ [June 30, 2014]).

     Defendant’s further contention that his plea was not voluntary,
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                                                         KA 10-02281

knowing, and intelligent because neither defense counsel nor County
Court (Rogowski, J.) advised him that he could be deported based upon
his conviction is not properly before us because defendant failed to
raise that contention in his CPL 440.10 motion (see People v
Pennington, 107 AD3d 1602, 1604, lv denied 22 NY3d 958). We have
considered defendant’s remaining contention and conclude that it is
without merit.




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