People v. Ceni

• Citation: 2014 N.Y. Slip Op. 08731,999 N.Y.S.2d 385,123 A.D.3d 506
• Decision Date: 11 December 2014
• Docket Number: 13759, 287/98
• Parties: The PEOPLE of the State of New York, Respondent, v. Astrit CENI, Defendant–Appellant.
• Court: New York Supreme Court Appellate Division

123 A.D.3d 506
999 N.Y.S.2d 385
2014 N.Y. Slip Op. 08731

The PEOPLE of the State of New York, Respondent
v.
Astrit CENI, Defendant–Appellant.

13759, 287/98

Supreme Court, Appellate Division, First Department, New York.

Dec. 11, 2014.

999 N.Y.S.2d 385

Labe M. Richman, New York, for appellant.

Robert T. Johnson, District Attorney, Bronx (Orrie A. Levy of counsel), for respondent.

GONZALEZ, P.J., TOM, FRIEDMAN, ACOSTA, MOSKOWITZ, JJ.

Opinion

123 A.D.3d 506

Order, Supreme Court, Bronx County (Dominic R. Massaro, J.), entered on or about January 31, 2014, which denied defendant's CPL 440.10 motion to vacate a 1998 judgment of conviction, unanimously affirmed.

The court properly denied defendant's 440 motion. The only branch of the motion that arguably may be addressed under CPL article 440, rather than on direct appeal, is defendant's ineffective assistance of counsel claim. However, the gist of this claim is defendant's assertion that his attorney never told him that he was pleading guilty to the depraved indifference element

999 N.Y.S.2d 386

of the crime of reckless endangerment, leading to negative immigration consequences. Thus, defendant has not set forth any cognizable ineffectiveness claims that are independent of Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), which was decided after defendant's conviction became final, and which has no retroactive application to this appeal (see Chaidez v. United States, 568 U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 [2013] ; People v. Baret, 23 N.Y.3d 777, 992 N.Y.S.2d 738, 16 N.E.3d 1216 [2014] ).

All of defendant's remaining arguments, including his claims that the court misadvised him of the immigration consequences of his plea, that the factual portion of the plea allocution was

123 A.D.3d 507

deficient, and that the Supreme Court Information was jurisdictionally defective, are barred by CPL 440.10(2) (c). In each instance, the basis for the argument “is clear from the face of the record...