By Joseph Ax
NEW YORK, Oct 2 (Reuters) - A landmark U.S. Supreme Court
ruling requiring defense attorneys to advise clients of the
potential adverse immigration consequences of a guilty plea
applies retroactively, a New York appeals court ruled Tuesday.
Roman Baret faced deportation after pleading guilty in 1996
to criminal sale of a controlled substance. He argued his plea
should be vacated under the 2010 Supreme Court decision in
Padilla v. Kentucky, where the court ruled a lawyer's failure to
tell a client about the deportation consequences of a guilty
plea was ineffective assistance of counsel.
The Appellate Division, First Department, held that Padilla
should be applied to cases dating back to at least 1996. The
court remanded Baret's case to the trial court to hold a
The decision appears to be the first time the court has held
that Padilla should apply retroactively, according to Labe
Richman, who represented Baret on appeal. The Appellate
Division, Third Department, also has found that Padilla should
apply retroactively, he said, as has the Appellate Term, Second
"To determine whether a rule is to be applied retroactively,
the court must determine whether the rule is 'new' or 'old," the
First Department wrote in Tuesday's unsigned opinion. "When a
Supreme Court decision applies a well-established constitutional
principle to a new circumstance, it is considered to be an
application of an 'old' rule, and is always retroactive."
The court emphasized that it was not addressing whether
Padilla applied to cases before 1996, when major changes to
federal immigration law vastly increased the risk that a
criminal conviction could lead to deportation for immigrants.
"It's a big victory," Richman said.
The question of whether Padilla should apply retroactively
will be taken up by the Supreme Court this fall in Chaidez v.
U.S., after several federal appeals courts issued conflicting
decisions on the matter.
Tuesday's decision reversed a ruling from Bronx Acting
Supreme Court Justice Raymond Bruce.
The Bronx district attorney's office, which prosecuted the
case against Baret and argued the case on appeal, did not
respond to a request for comment.
The First Department panel included justices Angela
Mazzarelli, David Saxe, Leland DeGrasse, Rosalyn Richter and
The case is People v. Baret, Appellate Division, First
Department, No. 7963.
For the prosecution: Jason Whitehead of the Bronx district
For Baret: Labe Richman.
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