| People v Santos |
| 2018 NY Slip Op 06812 |
| Decided on October 11, 2018 |
| 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 October 11, 2018
Friedman, J.P., Gische, Kapnick, Kahn, Oing, JJ.
7307 5583/03
v
Oscar Santos, Defendant-Appellant.
Wilens & Baker, New York (Daniel S. Kratka of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Philip Morrow of counsel), for respondent.
Order, Supreme Court, New York County (Abraham L. Clott, J.), entered March 28, 2017, which, after a hearing upon remand from this Court, denied defendant's CPL 440.10 motion to vacate a judgment, unanimously affirmed.
In a prior decision (145 AD3d 461 [1st Dept 2016]), we remanded the matter for a hearing to resolve factual issues whether defendant was deprived of effective assistance of counsel under People v McDonald (1 NY3d 109 [2003]) by way of erroneous and prejudicial immigration advice. Upon remand, defendant failed to establish that the advice he actually received regarding the deportation consequences of his plea, including both legal and practical considerations, was affirmatively erroneous. We find no basis for disturbing the court's credibility determinations, and its consequent findings of fact regarding the immigration advice rendered by counsel.
In light of the above, we need not decide whether defendant established that the allegedly erroneous advice was prejudicial.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 11, 2018
CLERK