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

3
KA 12-01682
PRESENT: SMITH, J.P, PERADOTTO, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

THOMAS B. SIMCOE, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (MARY-JEAN BOWMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

THOMAS B. SIMCOE, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT 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 Niagara County Court (Sara S. Farkas, J.), dated August 8, 2012.
The order denied defendant’s motion pursuant to CPL 440.10 to vacate a
judgment of conviction.

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

     Memorandum: Defendant was convicted following a nonjury trial
of, inter alia, attempted murder in the first degree (Penal Law §§
110.00, 125.27 [1] [a] [i]; [b]) and attempted murder in the second
degree (§§ 110.00, 125.25 [1]). The charges arose from defendant’s
savage beating of his wife and his stabbing of a police officer who
responded to the scene. After we affirmed the judgment (People v
Simcoe, 75 AD3d 1107, lv denied 15 NY3d 924), defendant moved pro se
to vacate the judgment pursuant to CPL 440.10 on the ground that he
was deprived of effective assistance of counsel. County Court denied
the motion without a hearing, and we now affirm once again.

     In support of his motion, defendant contended that his attorney
was ineffective because he gave him inadequate advice regarding plea
bargaining. More specifically, defendant complained that defense
counsel never advised him that his maximum exposure if convicted after
trial was an indeterminate term of imprisonment of 55 years to life,
underestimated the strength of the People’s case by stating that
defendant would never be convicted of attempting to murder the police
officer, and did not tell defendant that he “would” be sentenced
consecutively if convicted at trial. According to defendant, he would
have accepted the People’s plea offer, which included a proposed
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                                                         KA 12-01682

aggregate determinate term of 20 years plus a period of postrelease
supervision.

     “A postjudgment motion brought pursuant to [CPL 440.10] will not
necessitate a hearing in every instance, and it is the trial court’s
prerogative to make the preliminary determination of whether such a
hearing is necessary” (People v Snyder, 91 AD3d 1206, 1214, lv denied
19 NY3d 968, cert denied ___ US ___, 133 S Ct 791). Here, for reasons
stated in the court’s decision, we conclude that the court did not
abuse its discretion in denying defendant’s motion without a hearing
(see generally People v Blackman, 90 AD3d 1304, 1311-1312, lv denied
19 NY3d 971). “Notably, the Judge who determined the motion was the
same Judge who presided at the trial” (People v Morehouse, 5 AD3d 925,
926, lv denied 3 NY3d 644). We also note that defendant does not
allege that any of counsel’s advice was legally incorrect, e.g., he
does not allege that his attorney told him that the consecutive
sentences could not be imposed. Instead, defendant merely alleges, in
sum and substance, that his attorney had an overly optimistic outlook
on the case. We conclude that the evidence, the law, and the
circumstances of this case, viewed in totality and as of the time of
the representation, establish that defense counsel provided meaningful
representation to defendant at the plea bargaining stage (see
generally People v Baldi, 54 NY2d 137, 147).

     We have reviewed the contentions advanced by defendant in his pro
se supplemental brief and conclude that they lack merit.




Entered:   February 11, 2016                    Frances E. Cafarell
                                                Clerk of the Court
