People v. Cuello ( 1992 )

Judgment, Supreme Court, Bronx County (Elbert C. Hinkson, J.), rendered June 26, 1987, convicting defendant, upon his plea of guilty of manslaughter in the first degree, and sentencing him to a term of 7 to 21 years, and order of the same court, entered March 4, 1991, denying defendant’s motion pursuant to CPL 440.20 to set aside the sentence and for resentencing with a judicial recommendation against deportation, unanimously affirmed.

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 F2d 831, 835; People v Gabot, 176 AD2d 894, lv denied 79 NY2d 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 NY2d 852). In any event, we agree with the trial court that, on the whole, trial counsel provided meaningful representation (see, People v Baldi, 54 NY2d 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 F2d 941, 945, cert denied 493 US 1059).

The sentence is not excessive. Having benefited from the plea bargain, defendant should be bound by its terms (see, People v Felman, 141 AD2d 889, 890, lv denied 72 NY2d 918). Concur — Sullivan, J. P., Wallach, Ross and Asch, JJ.