| People v Melo-Cordero |
| 2014 NY Slip Op 08775 [123 AD3d 595] |
| December 16, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Francisco Melo-Cordero, Appellant. |
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel),for appellant.
Robert T. Johnson, District Attorney, Bronx (David P. Johnson of counsel), forrespondent.
Immigrant Defense Project, New York (Dawn M. Seibert for counsel), for amicuscuriae.
Order, Supreme Court, Bronx County (John W. Carter, J.), entered on or aboutDecember 6, 2013, which denied defendant's CPL 440.10 motion to vacate his judgmentof conviction, unanimously affirmed.
Defendant received effective assistance of counsel under the state and federalstandards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; People vFord, 86 NY2d 397, 404 [1995]; see also Strickland v Washington, 466 US668 [1984]), and the court properly exercised its discretion in denying defendant's CPL440.10 motion without holding a hearing (see People v Samandarov, 13 NY3d 433, 439-440[2009]; People v Satterfield, 66 NY2d 796, 799-800 [1985]). Contrary todefendant's contentions on appeal, the court did not evaluate his ineffective assistanceclaim under an incorrect legal standard. The denial of the motion was not exclusivelybased on the nonretroactivity of Padilla v Kentucky (559 US 356 [2010]). Rather,the court addressed defendant's distinct claim that his former counsel gave him inaccurateadvice about the immigration consequences of his plea, a claim that does not depend onPadilla, and the court evaluated this claim under the proper standards (see People v McDonald, 1NY3d 109, 114-115 [2003]).
The record supports the court's finding that defendant failed to show that hiscounsel's performance "fell below an objective standard of reasonableness"(McDonald, 1 NY3d at 113). Defendant's submissions did not provide adequatesupport for his allegation that counsel inaccurately advised him as to the consequences ofhis guilty plea. In particular, defendant did not provide an affirmation or otherinformation from his counsel, and defendant's own affidavit described his counsel'sadvice in terms of what supposedly "could" happen regarding deportation if defendantaccepted the People's plea offer. We conclude that defendant's submissions did notestablish that counsel provided immigration advice that was actually erroneous (see People v Simpson, 120AD3d 412 [1st Dept 2014]).
Defendant also failed to satisfy the requirement of prejudice. In light of the strengthof the People's case, the length of the possible sentence that he faced and the near certaindeportation consequences that would have resulted from his conviction after trial, thecourt properly determined that defendant had not established the necessity of a hearingon his CPL 440.10 motion based solely on the otherwise unsupported assertion made inhis affidavit that but for his attorney's allegedly incorrect advice, he would not havepleaded guilty and would have [*2]proceeded to trial(see CPL 440.30 [4] [d]; see also People v Hernandez, 22 NY3d 972, 975-976[2013]).
We have considered defendant's remaining contentions and find them unavailing.Concur—Mazzarelli, J.P., Andrias, Manzanet-Daniels, Feinman and Gische,JJ.