Justice Peter Tom
On Aug. 5, 2002, permanent resident Verdejo pleaded guilty to third-degree weapon possession. He was sentenced to four months' intermittent imprisonment and five years' probation. Removal proceedings were instituted on Sept. 19, 2010, based on Verdejo's conviction for unlawful possession of a firearm. On June 2, 2011, Verdejo moved to vacate conviction under Criminal Procedure Law §440.10(h), from which no appeal was ever taken, on grounds of ineffective assistance of counsel. Retroactively applying the Supreme Court's 2010 decision in Padilla v. Kentucky—in which the U.S. Supreme Court added to an attorney's obligations the duty to accurately advise an immigrant defendant of the deportation risk of a guilty plea—Bronx supreme court vacated the judgment against Verdejo. First Department reinstated judgment, concluding that Padilla did not warrant retroactive application. It observed that the holding in Teague v. Lane that Padilla announced new law, by which First Department is bound, dictated the conclusion that Padilla has no retroactive application. Discussing People v. Eastman, First Department concluded that merely prescribing a duty imposed on counsel did not warrant Padilla's retroactive application.
