| People v Simpson |
| 2014 NY Slip Op 05815 [120 AD3d 412] |
| August 14, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Kingsley Simpson, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Robin Nichinsky ofcounsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Eric C. Washer of counsel), forrespondent.
Order, Supreme Court, Bronx County (Robert A. Sackett, J.), entered on or aboutMay 31, 2012, order, same court (Gia L. Morris, J.), entered on or about June 14, 2012,and order, same court (Judith Lieb, J.), entered on or about June 29, 2012, each of whichdenied defendant's CPL 440.10 motion to vacate one or more judgments of the CriminalCourt, Bronx County, unanimously affirmed.
Defendant's ineffective assistance of counsel claims were primarily based on hisattorneys' alleged failure to advise him about the risk of deportation arising from hisguilty pleas (see Padilla v Kentucky, 559 US 356 [2010]). However, Padillahas no retroactive application to this appeal (see Chaidez v United States,568 US &mdash, 133 S Ct 1103 [2013]; People v Baret, 23 NY3d 777 [2014]). Defendant has not set forth any validineffectiveness claims that are independent of Padilla. Specifically, in addition tohis Padilla claims, defendant argues on appeal that his counsel misadvised himabout the immigration consequences of his guilty pleas (see People v McDonald, 1NY3d 109, 111 [2003]). Defendant's supporting affidavits, however, contain noassertions that he was given erroneous advice by counsel. Where a CPL 440.10 motion isbased upon the existence or occurrence of facts, the motion papers must contain swornallegations of such facts (CPL 440.30 [1] [a]). Accordingly, the courts below properlydenied defendant's erroneous advice claims because they were not supported by thenecessary allegations of fact (see CPL 440.30 [4] [b]).
Defendant's claims relating to the court's failure to advise him of the immigrationconsequences of his plea (seePeople v Peque, 22 NY3d 168 [2013]), and his other claims based on allegeddeficiencies in his plea allocutions, are not properly before this Court. A claim of a [*2]deficiency in a plea allocution is record-based and thereforemay not be raised by way of a CPL 440.10 motion (see CPL 440.10 [2] [c]). Wehave considered defendant's remaining contentions and find them unavailing.Concur—Sweeny, J.P., Andrias, Moskowitz, DeGrasse and Gische, JJ.