Defendant moves via CPL § 440.10[1][h] to vacate his 2002 conviction on the grounds that the court's failure to advise defendant of the immigration consequences of his plea violated his constitutional rights pursuant to People v Peque, 22 NY3d 168 [2013], decided November 19, 2013.

On March 11, 2002, defendant was arrested and subsequently indicted for the crimes of Criminal Sale of a Controlled Substance in or near School Grounds, P.L. § 220.44[2], Criminal Possession of a Controlled Substance in the Third Degree, § 220.16[1], and Criminal Sale of a Controlled Substance in the Third Degree, §220.39[1], in connection with his alleged sale of two glassine envelopes of heroin to an undercover officer within one thousand feet of a school, and the discovery of twenty-nine additional bags of heroin found on defendant's person upon his arrest. On April 9, 2002, defendant pled guilty to Criminal Sale of a Controlled Substance in or near School Grounds, P.L. § 220.44, a class B felony, in exchange for the promise that upon successful completion of the Fortune Society program he could withdraw his plea and re-enter a plea to a C felony with probation. If he failed to complete the program the original plea would stand and he would be sentenced to 2 to 6 years imprisonment. The plea agreement also included defendant's waiver of his right to appeal.

On November 12, 2002, defendant submitted the Fortune Society exit report. The court noted that it was essentially a positive result. The court allowed defendant to withdraw his original plea and accepted defendant's substitute plea to Attempted Criminal Sale of a Controlled [*2]Substance in the Third Degree, P.L. § 110/220.39, a class C felony. Defendant was sentenced to five years probation and waived his right to appeal. Defendant has not filed a notice of appeal.

Defendant's motion is procedurally barred because sufficient facts appea on the record of the proceedings so that the issue could have been adjudicated on direct appeal but for the fact that no appellate review was requested (see CPL § 440.20[2][c]; People v Cooks, 67 NY2d 100, 104 [1986]). The defense affirmation concedes that "an examination of the record shows that the plea court did not, at any time, inform him [defendant] that there may be immigration consequences to his [defendant's] plea" (see Defense Affirmation, ¶ 27). As seen below, the three cases decided by Peque were all on direct review and not exceptions to the above rule.

Alternatively, even if not procedurally barred, defendant's motion must still be denied for the following reasons.

Discussion

Prior to the decision in Peque, a court's failure to advise a defendant of the immigration consequences of a guilty plea did not invalidate an otherwise proper guilty plea because deportation was considered a collateral consequence (see People v Ford, 86 NY2d 397 [1995]).^[FN1] The New York Court of Appeals in Peque overruled the latter portion of its decision in Ford by deciding that due process compels trial courts to advise a non-citizen that a guilty plea to a felony may result in deportation (see Peque at 176).^[FN2] In order to determine if defendant can benefit from the Peque decision this court must first decide if Peque established a new rule and if the decision can be applied retroactively. The decision in Padilla v Kentucky, 559 US 356 [2010], is useful in making this determination.

Padilla announced a new rule declaring that a defendant has a Sixth Amendment right to be informed by counsel about the immigration consequences of a guilty plea (see Chaidez v US, 133 S. Ct. 1103, 1110-1111 [2013] noting that Padilla asked a threshold question: prior to asking if defense counsel acted unreasonably by failing to advise defendant about the immigration consequences of a guilty plea, it was first necessary to decide whether such advice was even required by the Sixth Amendment, i.e., should the court even evaluate if defense counsel acted unreasonably? The Padilla court answered that question in the affirmative thereby creating a new rule). The New York Court of Appeals recently decided that Padilla does not apply retroactively in state court post-motion proceedings (see People v Baret, ___ NY3d ___, 2014 WL 2921420 [2014]).

In Peque the New York Court of Appeals, before deciding if a court's failure to advise a defendant about the immigration consequences of a guilty plea violated due process, first considered whether due process even required such advice. It held that it did (Peque at 193). In applying the Chaidez analysis to the facts of this case, this court finds that Peque created a new rule. Peque's holding, i.e., that a trial court's failure to advise a noncitizen defendant of the deportation consequences of a guilty plea constitutes a violation of a defendant's due process rights that could invalidate an otherwise knowing, intelligent and voluntary guilty plea, was not apparent to all reasonable jurists prior to the Peque decision. It was not the "then-dominant view." Instead of applying a known principle to a different set of facts, the Peque court "broke new ground" and created a "new rule" which "imposed a new obligation" on the trial courts accepting guilty pleas (see Chaidez, at 1107, 1110-1111).

As noted by the People, the Court of Appeals has "drawn a sharp distinction between cases on direct appeal and cases in which "[t]he normal appellate process [has come] to an end" (see People v Jean-Baptiste, 11 NY3d 539, 543 [2008], quoting People v Favor, 82 NY2d at 261, n2 [1992]) (alterations in original); see also Polanco v Herbert, 7 NY3d 588, 604 [2006], cited by Jean-Baptiste, 11 NY3d at 544 noting the court's "concern for congesting the courts with a multitude of motions by defendants with long-standing convictions. Here defendant's conviction, as seen below, became final almost 12 years ago.

Defendant's assertion that the Peque decision itself necessarily implied that it was retroactive is mistaken. The Peque decision concerned three separate defendants. None of the three cases were final; instead all three were on direct appeal. Contrary to defendant's claim, defendant Diaz, one of the three defendants in Peque, received the benefit of the ruling in Peque because his case was on appeal and not final. Peque did not state that its decision applied to cases which were already final (see People v Jean-Baptiste, 11 NY3d 539, 542 [2008], citing People v Vasquez, 88 NY2d 561, 573 [1996], stating, "under traditional common-law principles, cases on direct appeal are generally decided in accordance with the law as it exists at the time the appellate decision is made"). In applying the principles set out in Teague v Lane, 489 US 288 [1989], the Supreme Court in Chaidez stated, "Teague makes the retroactivity of our criminal procedure decisions turn on whether they are novel. When we announce a "new rule," a person whose conviction is already final may not benefit from the decision in a habeas or similar proceeding. Only when we apply a settled rule may a person avail herself of the decision on collateral review..." (see Chaidez at 1107).

"A judicial holding overruling established precedent should, in most instances, be considered a "new rule" requiring a determination of retroactivity (see People v Favor, 82 NY2d 254, 263 [1992]). The determination as to whether a new rule should be applied retroactively under new York law requires a court to consider three factors: the purpose of the new rule; 2) the extent of the reliance on the old rule; 3) and the potential effect on the administration of justice by giving retroactive effect to the new rule (see People v Mitchell, 80 NY2d 519, 522 [1992]; People v Pepper, 53 NY2d 213, 220 [1981]). Here, all three factors weigh heavily against retroactivity: the new rule announced in Peque does not bear on guilt or innocence (see People v Martello, 93 NY2d 645, 652 [1999]; People v Andrews, 108 AD3d 727, 728 [2d Dept 2013]); there has been long standing broad reliance on the old rule by prosecutors and with the courts' approval (see People v Ford, 86 NY2d 397 [1995]; People v Andrews, 103 AD3d at 729); [*3]retroactive application of Peque would result in a deluge of challenges to pleas requiring a hearing since the majority of criminal cases are resolved by guilty pleas.

Defendant never filed an appeal. He was sentenced on November 12, 2002. His conviction became final after the expiration of 30 days during which time no appeal was filed (see CPL § 460.10[1][a]; CPL § 460.10[2]; People v Duggan, 69 NY2d 931, 932 [1987]).^[FN3]

Since defendant's conviction is final on appeal, the Peque decision does not apply, and his motion is denied without a hearing.

This shall constitute the decision and order of this court.