People v. Melo-Cordero

• Decision Date: 16 December 2014
• Docket Number: 3433/08, 13797, 13796
• Citation: 123 A.D.3d 595,2014 N.Y. Slip Op. 08775,999 N.Y.S.2d 42
• Parties: The PEOPLE of the State of New York, Respondent, v. Francisco MELO–CORDERO, Defendant–Appellant. Immigrant Defense Project, Amicus Curiae.
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 595

999 N.Y.S.2d 42

2014 N.Y. Slip Op. 08775

The PEOPLE of the State of New York, Respondent

v. Francisco MELO–CORDERO, Defendant–Appellant.Immigrant Defense Project, Amicus Curiae.

3433/08, 13797, 13796

Supreme Court, Appellate Division, First Department, New York.

Dec. 16, 2014.

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), for respondent.

Immigrant Defense Project, New York (Dawn M. Seibert for counsel), for amicus curiae.

MAZZARELLI, J.P., ANDRIAS, MANZANET–DANIELS, FEINMAN, GISCHE, JJ.

Opinion

Order, Supreme Court, Bronx County (John W. Carter, J.), entered on or about December 6, 2013, which denied defendant's CPL 440.10 motion to vacate his judgment of conviction, unanimously affirmed.

Defendant received effective assistance of counsel under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ; see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ), and the court properly exercised its discretion in denying defendant's CPL 440.10 motion without holding a hearing (see People v. Samandarov, 13 N.Y.3d 433, 439–440, 892 N.Y.S.2d 823, 920 N.E.2d 930 [2009] ; People v. Satterfield, 66 N.Y.2d 796, 799–800, 497 N.Y.S.2d 903, 488 N.E.2d 834 [1985] ). Contrary to defendant's contentions on appeal, the court did not evaluate his ineffective assistance claim under an incorrect legal standard. The denial of the motion was not exclusively based on the nonretroactivity of Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Rather, the court addressed defendant's distinct claim that his former counsel gave him inaccurate advice about the immigration consequences of his plea, a claim that does not depend on Padilla, and the court evaluated this claim under the proper standards (see People v. McDonald, 1 N.Y.3d 109, 114–115, 769 N.Y.S.2d 781, 802 N.E.2d 131 [2003] ).

The record supports the court's finding that defendant failed to show that his counsel's performance “fell below an objective standard of reasonableness” (McDonald, 1 N.Y.3d at 113, 769 N.Y.S.2d 781, 802 N.E.2d 131 ). Defendant's submissions did not provide adequate support for his allegation that counsel inaccurately advised him as to the consequences of his guilty plea. In particular, defendant did not provide an affirmation or other information from his counsel, and defendant's own affidavit described his counsel's advice in terms of what supposedly “could” happen regarding deportation if defendant accepted the People's plea offer. We conclude that defendant's submissions did not establish that counsel provided immigration advice that was actually erroneous (see People v. Simpson, 120 A.D.3d 412, 990 N.Y.S.2d 813 [1st Dept.2014] ).

Defendant also failed to satisfy the requirement of prejudice. In light of the strength of the People's case, the length of the possible sentence that he faced and the near certain deportation consequences that would have resulted...