| People v Heywood |
| 2016 NY Slip Op 03113 [138 AD3d 607] |
| April 26, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Craig Heywood, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Lawrence T. Hausman ofcounsel), for appellant.
Darcel D. Clark, District Attoroney, Bronx (Marianne Stracquadanio of counsel), forrespondent.
Order, Supreme Court, Bronx County (Eugene Oliver, Jr., J.), entered on or aboutFebruary 4, 2015, which denied defendant's CPL 440.10 motion to vacate two judgmentsof conviction rendered July 17 and August 14, 2007, unanimously affirmed.
The court properly exercised its discretion under CPL 440.10 (3) (b) in summarilydenying what was essentially a renewal motion. On a prior motion, defendant had allegedthat the attorney who represented him at the time of his 2007 pleas to misdemeanorsinvolving the sale of marijuana gave him affirmative misadvice that these convictionswould have no immigration consequences (see generally People v McDonald, 1 NY3d 109 [2003]).After a hearing, at which defendant, the sole witness, testified that his lawyer told himthese convictions would come "off [defendant's] record" in 6 to 12 months if he stayedout of trouble and would have no adverse immigration affect, the court (Patricia AnneWilliams, J.), denied the motion on the ground that defendant failed to meet his burdenof proving the existence of the alleged misadvice.
The present motion asserted the same ground, but stated that defendant now intendedto call plea counsel as a witness. Regardless of the validity of defendant's excuse for notdoing so at the original hearing, he did not show that a new hearing was warranted. Pleacounsel's affidavit stated that he had "no specific recollection of providing [defendant]with any advice as to Immigration consequences," and that his files for defendant's casescould not be located. Defendant's assertion that, if called at a hearing, counsel mightnevertheless provide corroborating testimony is speculative. At most, defendant wouldbe able to establish a lack-of-advice claim, which would be barred by the nonretroactivityof Padilla v Kentucky (559 US 356 [2010]).
Defendant also failed to satisfy the requirement of prejudice. Defendant had onlybeen in the United States for a few months, on an overstayed visa, at the time that hepleaded guilty, and his written submissions and his testimony at the hearing on his first440.10 motion established that he wanted to avoid incarceration. Thus, it was unlikelythat he would have rejected a plea offer and risked a conviction after trial even had heknown about the immigration consequences of his plea. While defendant asserts that hewould have held out for a plea offer without immigration consequences had his pleacounsel properly advised him, there is no reason to [*2]believe that his counsel, who negotiated a favorable pleabargain with no jail time, would have been able to obtain a plea to a violation rather thana misdemeanor. Concur—Sweeny, J.P., Saxe, Moskowitz, Gische and Webber,JJ.