People v Juan Fernandez

People v Fernandez 2005 NY Slip Op 06635 [5 NY3d 813] September 13, 2005 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 16, 2005

[*1] The People of the State of New York, Respondent,
v
Juan Fernandez, Appellant.

Decided September 13, 2005

People v Fernandez, 13 AD3d 271, affirmed.

APPEARANCES OF COUNSEL

Galgano & Associates, White Plains (George W. Galgano, Jr., of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Sandra E. Cavazos of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed, should be affirmed.

Here, the parties agree that to prevail on his claim that he was denied effective [*2]assistance of counsel, defendant had the burden to demonstrate "that a plea offer was made, that defense counsel failed to inform him of that offer, and that he would have been willing to accept the offer" (People v Rogers, 8 AD3d 888, 890-891 [3d Dept 2004]). Defendant failed to meet that burden. Assuming that such an offer was made, defendant proffered nothing to substantiate his claim that he would have accepted the plea. Defendant's self-serving statement that he would have accepted the plea despite his claimed innocence, without more, is insufficient to warrant a hearing in light of the similar plea offer he rejected days before and trial counsel's affirmation that at the time of the alleged offer he believed the charges would likely be dismissed because the People could not locate a necessary witness.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order, insofar as appealed from, affirmed in a memorandum.