Opinion
184.
Decided September 13, 2005.
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered December 28, 2004. The Appellate Division affirmed (1) a judgment of the Supreme Court, New York County (John E.H. Stackhouse, J.), which had convicted defendant, upon a jury verdict, of assault in the first degree, and (2) an order of that Court which had denied defendant's motion to vacate the judgment of conviction pursuant to CPL 440.10.
People v. Fernandez, 13 AD3d 271, affirmed.
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.
Before: Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.
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 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.
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.