Judge Philip Goglas
Nazario moved to vacate the judgments of conviction arguing ineffective assistance of counsel due to counsel's failure to inform defendant of immigration consequences. She claimed the judgments of conviction triggered removal proceedings, maintaining that her former attorney's assistance was inadequate because he failed to advise her of the prospective immigration consequences that were triggered by her guilty pleas to criminal possession of a weapon and disorderly conduct charges. The court noted that under Padilla v. Kentucky the failure to advise a defendant about deportation caused ineffective assistance of counsel, thus was grounds for a court to vacate a judgment of conviction. However, the court also noted that until February 2013, when the United States Supreme Court expressly addressed the issue of the retroactivity of its holding in Padilla, in Chaidez v. United States, Padilla was applied retroactively. Yet, under Chaidez, the court ruled Padilla relief was not available to Nazario, whose conviction became final before the issuance of Padilla. Therefore, the court concluded Nazario's motion for relief under Criminal Procedure Law §440.10(1)(h) must be denied.
