People v Blackman (2018 NY Slip Op 07982) People v Blackman 2018 NY Slip Op 07982 Decided on November 21, 2018 Appellate Division, Third 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 and Entered: November 21, 2018 109732 [*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent, vBILLY JOE P. BLACKMAN, Appellant. Calendar Date: October 19, 2018 Before: Lynch, J.P., Clark, Mulvey, Rumsey and Pritzker, JJ. James Sacco, Binghamton, for appellant. Stephen K. Cornwell Jr., District Attorney, Binghamton (Anthony J. Frank of counsel), for respondent. MEMORANDUM AND ORDER Clark, J. Appeal, by permission, from an order of the County Court of Broome County (Dooley, J.), entered August 31, 2017, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of criminal possession of marihuana in the first degree, criminal sale of marihuana in the first degree, criminal possession of marihuana in the fourth degree and unlawful possession of marihuana (two counts), without a hearing. In April 2011, following an investigation into marihuana trafficking in Broome County, defendant was charged in a five-count indictment with criminal possession of marihuana in the first degree, criminal sale of marihuana in the first degree, criminal possession of marihuana in the fourth degree and unlawful possession of marihuana (two counts). The matter ultimately proceeded to a jury trial in 2012, at the conclusion of which defendant was convicted on all counts and sentenced to a term of imprisonment. Upon appeal, this Court affirmed (118 AD3d 1148 [2014], lv denied 24 NY3d 1001 [2014]). After exhausting his criminal appeals, defendant, who was born in Guyana, moved to vacate the judgment of conviction pursuant to CPL 440.10, contending that he had been denied the effective assistance of counsel. Specifically, defendant alleged that he was deprived of meaningful representation because his trial attorney failed to apprise him of the potential immigration consequences of a conviction on the subject charges and to explore, negotiate and [*2]procure an immigration-friendly plea offer, i.e., one that would not have exposed defendant to deportation. The People opposed defendant's application, stating that trial counsel — who was affiliated with a law firm that purportedly specialized in immigration law — had in fact negotiated and secured a favorable plea offer for defendant and that defendant had rejected that offer in favor of proceeding to trial. County Court denied the motion without a hearing, and defendant now appeals by permission. "Although a hearing on a CPL 440.10 motion is not always necessary, a hearing is required where the defendant bases the motion upon nonrecord facts that are material and, if established, would entitle the defendant to relief" (People v Monteiro, 149 AD3d 1155, 1156 [2017] [citation omitted]; see CPL 440.30 [5]; People v Satterfield, 66 NY2d 796, 799 [1985]). In support of his motion to vacate the judgment of conviction, defendant tendered his own affidavit, wherein he ...
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