| People v Bank |
| 2015 NY Slip Op 00133 [124 AD3d 1376] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Herman Bank, Appellant. |
Robert N. Isseks, Middletown, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court inthe Fourth Judicial Department, from an order of the Monroe County Court (Douglas A.Randall, J.), entered December 17, 2013. The order denied defendant's motion to vacatethe judgment of conviction pursuant to CPL 440.10.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from an order denying his motion pursuant to CPLarticle 440 seeking to vacate the judgment convicting him of, inter alia, manslaughter inthe second degree (Penal Law § 125.15 [1]) and vehicular manslaughter inthe second degree (§ 125.12 [1]), on the ground that he was deniedeffective assistance of counsel at trial. We conclude that County Court (Randall, J.)properly denied the motion after a hearing.
Defendant contends that he was denied effective assistance of counsel by defensecounsel's misunderstanding of the law and incorrect advice to defendant regardingconsecutive sentencing, and that defense counsel's errors deprived him of the opportunityto plead guilty in return for a lesser sentence. Defendant thus had the burden ofestablishing that "it [was] reasonably probable that a plea bargain acceptable to defendantwould have been reached but for counsel's failure" (People v Garcia, 19 AD3d 17, 22 [2005]). We concludethat defendant failed to meet that burden. The court properly concluded that, based on thecircumstances of the crime and the strength of the People's case, the prosecutor wouldnot have offered a plea bargain acceptable to defendant, and that County Court (Connell,J.) would not have agreed to such a plea bargain in any event. Although defendantestablished at the hearing that defense counsel incorrectly advised him during pleanegotiations that he was facing consecutive sentences after conviction, defendant failedto establish that he was deprived of the possibility of a plea bargain acceptable to him asthe result of defense counsel's error (cf. People v Perron, 287 AD2d 808, 808-809[2001], lv denied 97 NY2d 686 [2001]). "Thus, we cannot find that counsel'smisconception during plea negotiations caused defendant any prejudice" (People v Thomson, 46 AD3d939, 941 [2007], lv denied 9 NY3d 1039 [2008]).
With respect to defendant's contention that defense counsel adopted an improper trialstrategy because of defense counsel's misunderstanding regarding consecutivesentencing, there is no evidence that any other trial strategy was available and, thus,defendant failed to "demonstrate the absence of strategic or other legitimate explanationsfor counsel's allegedly deficient conduct" in that respect (People v Cotton, 120 AD3d1564, 1566 [2014] [internal quotation marks omitted]; see People v Caban, 5 NY3d143, 152 [2005]; People vColeman, 37 AD3d 489, 490 [2007], lv denied 9 NY3d 864[2007]).
We have considered defendant's remaining contention and conclude that it is withoutmerit. Present—Scudder, P.J., Smith, Carni, Lindley and Sconiers, JJ.