Opinion
2014-08-14
The PEOPLE of the State of New York, 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.
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, 130 S.Ct. 1473, 176 L.Ed.2d 284 [2010] ). However, Padilla has no retroactive application to this appeal ( see Chaidez v. United States, 568 U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 [2013];People v. Baret, ––– N.Y.3d ––––, –––N.Y.S.2d ––––, ––– N.E.2d ––––, 2014 WL 2921420 [2014]. Defendant has not set forth any valid ineffectiveness claims that are independent of Padilla. Specifically, in addition to his Padilla claims, d efendant argues on appeal that his counsel misadvised him about the immigration consequences of his guilty pleas ( see People v. McDonald, 1 N.Y.3d 109, 111, 769 N.Y.S.2d 781, 802 N.E.2d 131 [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 N.Y.3d 168, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013] ), and his other claims based on alleged deficiencies in his plea allocutions, are not properly before this Court. A claim of a deficiency in a plea allocution is record-based and thereforemay not be raised by way of a CPL 440.10 motion ( seeCPL 440.10[2][c] ). We have considered defendant's remaining contentions and find them unavailing. SWEENY, J.P., ANDRIAS, MOSKOWITZ, DeGRASSE, GISCHE, JJ., concur.