SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
448
KA 14-02169
PRESENT: WHALEN, P.J., SMITH, CENTRA, TROUTMAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ANDRE NORWOOD, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.
Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Supreme Court, Monroe County (Daniel J. Doyle, J.), entered
October 29, 2014. The order denied the motion of defendant to vacate
a judgment of conviction.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from an order denying his motion
pursuant to CPL 440.10 (1) (h) seeking to vacate the judgment
convicting him following a jury trial of murder in the second degree
(Penal Law § 125.25 [2]), based upon the alleged denial of effective
assistance of counsel. Specifically, defendant alleged that, when he
discussed a plea offer of 15 years to life, defense counsel failed to
advise him that the maximum sentence, if convicted after trial, was 25
years to life. Following a hearing, Supreme Court determined that
defendant’s self-serving testimony to that effect was not credible and
that he therefore failed to meet the requisite burden of proving by a
preponderance of the evidence that he was denied effective assistance
of counsel (see CPL 440.30 [6]). “The court’s credibility
determination is entitled to great weight . . . , and we perceive no
basis for reversal on the record before us” (People v Smith, 16 AD3d
1081, 1082, lv denied 4 NY3d 891; see People v Campbell, 106 AD3d
1507, 1508, lv denied 21 NY3d 1002).
Entered: April 28, 2017 Frances E. Cafarell
Clerk of the Court