| People v Simpson |
| 2014 NY Slip Op 05815 |
| Decided on August 14, 2014 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on August 14, 2014
Sweeny, J.P., Andrias, Moskowitz, DeGrasse, Gische, JJ.
27284/00 -72046/99 11813B 64006/97 21992/99 11813A 11813
v
Kingsley Simpson, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Robin Nichinsky of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Eric C. Washer of counsel), for respondent.
Order, Supreme Court, Bronx County (Robert A. Sackett, J.), entered on or about May 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 which denied defendant's CPL 440.10 motion to vacate one or more judgments of the Criminal Court, Bronx County, unanimously affirmed.
Defendant's ineffective assistance of counsel claims were primarily based on his attorneys' alleged failure to advise him about the risk of deportation arising from his guilty pleas (see Padilla v Kentucky, 559 U.S. 356 [2010]). However, Padilla has no
retroactive application to this appeal (see Chaidez v United States, 568 US __, 133 S. Ct. 1103 [2013]; People v Baret,
NY3d , 2014 NY Slip Op 04872 [2014]. Defendant has not set forth any valid ineffectiveness claims that are independent of Padilla. Specifically, in addition to his Padilla claims, defendant argues on appeal that his counsel misadvised him about the immigration consequences of his guilty pleas (see People v McDonald, 1 NY3d 109, 111 [2013]). Defendant's supporting affidavits, however, contain no assertions that he was given erroneous advice by counsel. Where a CPL 440.10 motion is based upon the existence or occurrence of facts, the motion papers must contain sworn allegations of such facts (CPL 440.30[1][a]). Accordingly, the courts below properly denied defendant's erroneous advice claims because they were not supported by the necessary allegations of fact (see CPL 440.30 [4][b]).
Defendant's claims relating to the court's failure to advise him of the immigration consequences of his plea (see People v Peque, 22 NY3d 168 [2013]), and his other claims based on alleged deficiencies in his plea allocutions, are not properly before this Court. A claim of a [*2]deficiency in a plea allocution is record-based and therefore may not be raised by way of a CPL 440.10 motion (see CPL 440.10[2][c]). We have considered defendant's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: AUGUST 14, 2014
CLERK