People v Medina

People v Medina 2015 NY Slip Op 05401 Decided on June 23, 2015 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 June 23, 2015
Tom, J.P., Renwick, Moskowitz, Manzanet-Daniels, Feinman, JJ.
10623/90 15493 15492

[*1] 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.

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 NY3d 433, 439-440 [2009]). Padilla v Kentucky (559 US 356 [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 NY3d 777 [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 AD3d 412 [1st Dept 2014], lv denied 24 NY3d 1046 [2014]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 23, 2015

CLERK