        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1381
KA 14-00079
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HERMAN BANK, DEFENDANT-APPELLANT.


ROBERT N. ISSEKS, MIDDLETOWN, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Monroe County Court (Douglas A. Randall, J.), entered December 17,
2013. The order denied defendant’s motion to vacate the judgment of
conviction pursuant to CPL 440.10.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from an order denying his motion
pursuant to CPL article 440 seeking to vacate the judgment convicting
him of, inter alia, manslaughter in the second degree (Penal Law §
125.15 [1]) and vehicular manslaughter in the second degree (§ 125.12
[1]), on the ground that he was denied effective assistance of counsel
at trial. We conclude that County Court (Randall, J.) properly denied
the motion after a hearing.

     Defendant contends that he was denied effective assistance of
counsel by defense counsel’s misunderstanding of the law and incorrect
advice to defendant regarding consecutive sentencing, and that defense
counsel’s errors deprived him of the opportunity to plead guilty in
return for a lesser sentence. Defendant thus had the burden of
establishing that “it [was] reasonably probable that a plea bargain
acceptable to defendant would have been reached but for counsel’s
failure” (People v Garcia, 19 AD3d 17, 22). We conclude that
defendant failed to meet that burden. The court properly concluded
that, based on the circumstances of the crime and the strength of the
People’s case, the prosecutor would not have offered a plea bargain
acceptable to defendant, and that County Court (Connell, J.) would not
have agreed to such a plea bargain in any event. Although defendant
established at the hearing that defense counsel incorrectly advised
him during plea negotiations that he was facing consecutive sentences
after conviction, defendant failed to establish that he was deprived
                                 -2-                          1381
                                                         KA 14-00079

of the possibility of a plea bargain acceptable to him as the result
of defense counsel’s error (cf. People v Perron, 287 AD2d 808, 808-
809, lv denied 97 NY2d 686). “Thus, we cannot find that counsel’s
misconception during plea negotiations caused defendant any prejudice”
(People v Thompson, 46 AD3d 939, 941, lv denied 9 NY3d 1039)

     With respect to defendant’s contention that defense counsel
adopted an improper trial strategy because of defense counsel’s
misunderstanding regarding consecutive sentencing, there is no
evidence that any other trial strategy was available and, thus,
defendant failed to “demonstrate the absence of strategic or other
legitimate explanations for counsel’s allegedly deficient conduct” in
that respect (People v Cotton, 120 AD3d 1564, 1566 [internal quotation
marks omitted]; see People v Caban, 5 NY3d 143, 152; People v Coleman,
37 AD3d 489, 490, lv denied 9 NY3d 864).

     We have considered defendant’s remaining contention and conclude
that it is without merit.




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
