Opinion
06-23-2015
The PEOPLE of the State of New York, Respondent, v. Francisco MEDINA, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Ellen Dille of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Allen J. Vickey of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Ellen Dille of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Allen J. Vickey of counsel), for respondent.
Opinion Order, Supreme Court, New York County (Ruth Pickholz, J.), entered on or about June 20, 2012, which denied defendant's CPL 440.10 motion to vacate a judgment of conviction rendered February 22, 1991, unanimously affirmed.
The court properly denied 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] ). Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), requiring counsel to advise a defendant of the immigration consequences of entering a guilty plea, is not accorded retroactive effect (People v. Baret, 23 N.Y.3d 777, 992 N.Y.S.2d 738, 16 N.E.3d 1216 [2014] ). To the extent that defendant's moving papers may be read to assert that he was given misleading advice, his failure to specify the allegedly erroneous advice, by setting forth sufficient factual allegations to support his claim is fatal to his application (CPL 440.30[1][a] ; see People v. Simpson, 120 A.D.3d 412, 990 N.Y.S.2d 813 [1st Dept 2014], lv. denied 24 N.Y.3d 1046, 998 N.Y.S.2d 316, 23 N.E.3d 159 [2014] ).TOM, J.P., RENWICK, MOSKOWITZ, MANZANET–DANIELS, FEINMAN, JJ., concur.