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People v. Cuello

Appellate Division of the Supreme Court of New York, First Department
Dec 29, 1992
188 A.D.2d 428 (N.Y. App. Div. 1992)

Opinion

December 29, 1992

Appeal from the Supreme Court, Bronx County (Elbert C. Hinkson, J.).


Defendant is barred from seeking a judicial recommendation against deportation (JRAD) because of the retroactive repeal of the abolition of JRAD provisions relating thereto (Immigration Act of 1990 § 505 [a], Pub L 101-649, 104 US Stat 4978, 5050). Since the abolition of JRADs did not enhance criminal punishment, there is no violation of the Ex Post Facto Clause (see, United States v Koziel, 954 F.2d 831, 835; People v Gabot, 176 A.D.2d 894, lv denied 79 N.Y.2d 947). Nor is there a violation of due process of law, since a decision to grant a JRAD is discretionary (see, United States v Koziel, supra, at 835).

We note that defendant's claim of ineffective assistance of counsel should have been brought by a motion pursuant to CPL 440.10 to vacate the judgment, not by way of a motion pursuant to CPL 440.20 to set aside the sentence (see, People v Brown, 45 N.Y.2d 852). In any event, we agree with the trial court that, on the whole, trial counsel provided meaningful representation (see, People v Baldi, 54 N.Y.2d 137, 146-147). Faced with the People's strong case for second degree murder, trial counsel negotiated a plea to first degree manslaughter and for a prison term much shorter than defendant would have received had he been convicted of the murder. Moreover, a failure to request a JRAD in and of itself does not constitute ineffective assistance of counsel (see, Santos v Kolb, 880 F.2d 941, 945, cert denied 493 U.S. 1059).

The sentence is not excessive. Having benefited from the plea bargain, defendant should be bound by its terms (see, People v Felman, 141 A.D.2d 889, 890, lv denied 72 N.Y.2d 918).

Concur — Sullivan, J.P., Wallach, Ross and Asch, JJ.


Summaries of

People v. Cuello

Appellate Division of the Supreme Court of New York, First Department
Dec 29, 1992
188 A.D.2d 428 (N.Y. App. Div. 1992)
Case details for

People v. Cuello

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. SANTO CUELLO, Also…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 29, 1992

Citations

188 A.D.2d 428 (N.Y. App. Div. 1992)

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