People v. Roman Baret


AD1 order dated October 2, 2012, reversing summary denial of Padilla 440. Decision below: 99 AD3d 408, 952 NYS2d 108. Smith, J., granted leave to People June 5, 2013.

ISSUE PRESENTED: Whether Padilla v. Kentucky, decided after defendant’s conviction was affirmed on direct appeal, applies retroactively in New York State (Chaidez v. U.S., 133 S.Ct. 1103). (Counsel for defendant: Labe M. Richman.)

Issues before the Court: Whether the US Supreme Court’s decision in Padilla v. Kentucky, holding that a defense attorney has an obligation to advise a non-citizen defendant about the immigration consequences of a contemplated guilty plea, must be retroactively applied in New York. 


Held: Baret posed the question of whether non-citizen defendants who had pleaded guilty without receiving adequate advice about the immigration consequences of their guilty pleas would be entitled to seek relief, even if their convictions had become final before Padilla was decided on March 31, 2010. The First Department had held in Baret that Padilla was not a new rule under Teague v. Lane, and therefore should be applied retroactively, and not merely to cases that were not final at the time Padilla was decided, allowing defendants to seek relief by CPL 440.10 motion, even if their convictions had been final when Padilla was decided. Subsequently, however, in Chaidez v United States, 568 US __, 133 S Ct 1103 (2013), the Supreme Court ruled that Padilla was a new rule and should not be applied retroactively. Although Federal law allowed state courts to adopt their own standards as to whether to apply a Federal constitutional rule retroactively, the Court of Appeals agreed with the Supreme Court’s analysis in Chaidez and declined to apply the Federal constitutional rule retroactively. The Court of Appeals also declined to apply a state constitutional protection retroactively under New York State constitutional law.


CAL Observes: While Baret forecloses defendants whose convictions were final on March 31, 2010 from challenging their convictions by 440.10 motions on Padilla grounds, at least two avenues remain open to those defendants, at least for now. Where the court failed to advise the defendant that, if he was a non-citizen, his conviction might result in his deportation, the defendant can still pursue a challenge under People v. Peque. And, where the lawyer not only failed to advise the defendant that his conviction might result in his deportation, but also failed to effectively negotiate an advantageous plea, the defendant can challenge his conviction under Missouri v. Frye, 132 S.Ct. 1399 (2012), and its companion case, Lafler v. Cooper, 132 S.Ct. 1376 (2012).