Opinion
10-06-2016
The PEOPLE of the State of New York, Respondent, v. Benjamin DICKSON–EASON, Appellant.
Catherine A. Barber, Albany, for appellant, and appellant pro se. P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.
Catherine A. Barber, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.
Before: PETERS, P.J., MCCARTHY, GARRY, CLARK and AARONS, JJ.
GARRY, J.
Appeals (1) from a judgment of the Supreme Court (Breslin, J.), rendered January 15, 2015 in Albany County, convicting defendant upon his plea of guilty of the crime of burglary in the second degree, and (2) by permission, from an order of said court, entered April 14, 2015 in Albany County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Following the denial of his motion to suppress statements made to police, among other evidence, defendant pleaded guilty to burglary in the second degree pursuant to a plea agreement that included a waiver of appeal. The sentence was capped at 10 years to be followed by five years of postrelease supervision. Supreme Court denied defendant's subsequent motion to withdraw his guilty plea, following a hearing, and imposed a prison sentence of 10 years with five years of postrelease supervision, as a second felony offender. Defendant thereafter moved pursuant to CPL article 440 to vacate the judgment of conviction, which the court denied in a written decision. Defendant now appeals from the judgment of conviction and, with permission, from the order denying his motion to vacate.
Substitute counsel was assigned to represent defendant on this motion and thereafter.
Initially, defendant's challenge to the denial of his motion to suppress his statements to police is precluded by his knowing, voluntary and intelligent waiver of appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999] ; People v. Zippo, 136 A.D.3d 1222, 1222, 25 N.Y.S.3d 729 [2016], lv. denied 27 N.Y.3d 1141, 39 N.Y.S.3d 124, 61 N.E.3d 523 [2016] ; People v. Cooper, 126 A.D.3d 1046, 1047, 4 N.Y.S.3d 392 [2015], lv. denied
26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015] ). During the plea allocution, an appeal waiver was recited as a term of the agreement, defendant was adequately advised as to its nature and consequences and that it was separate and distinct from those rights automatically forfeited by his guilty plea, and he reviewed it with counsel before signing a written appeal waiver in court (see People v. Dobbs, 138 A.D.3d 1352, 1353, 28 N.Y.S.3d 918 [2016], lv. denied 28 N.Y.3d 929, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016] ). The valid appeal waiver also forecloses defendant's challenge to the severity of the sentence (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2009] ).
Defendant also argues that his plea was involuntary due to the ineffective assistance provided by former counsel prior to and at the time of the plea, and that his motion to vacate his plea should have been granted. At the hearing on that motion, defendant testified that counsel misled and misinformed him regarding his likely sentencing status, among other things, and failed to disclose evidence to him, and he claimed that he was innocent and only pleaded guilty to avoid a life sentence. Supreme Court discredited these allegations based upon, among other factors, the transcript of the plea allocution and former counsel's contrary hearing testimony. The record reveals that defendant was adequately advised that persistent felony offender sentencing was possible, not mandatory, if he were convicted.
Notably, “[i]n the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt upon the apparent effectiveness of counsel” (People v. Briggs, 138 A.D.3d 1355, 1356, 30 N.Y.S.3d 748 [2016] [internal quotation marks and citation omitted], lv. denied 28 N.Y.3d 927, 40 N.Y.S.3d 355, 63 N.E.3d 75 [2016] ) and the decision “[w]hether to permit a defendant to withdraw his or her plea of guilty is left to the sound discretion of [the trial c]ourt, and withdrawal will generally not be permitted absent some evidence of innocence, fraud or mistake in its inducement” (People v. Farnsworth, 140 A.D.3d 1538, 1539, 34 N.Y.S.3d 713 [2016] [internal quotation marks and citations omitted] ). Deferring to the court's credibility determinations (see People v. Eggsware, 125 A.D.3d 1057, 1058, 3 N.Y.S.3d 442 [2015], lv. denied 25 N.Y.3d 1162, 15 N.Y.S.3d 295, 36 N.E.3d 98 [2015] ), which are supported by defendant's sworn statements during the plea allocution and counsel's testimony, we are persuaded that defendant's guilty plea was a “knowing, voluntary and intelligent choice among alternative courses of action” (People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] [internal quotation marks and citation omitted]; see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993] ). Further, in denying his motion to withdraw his plea, the court was entitled to rely on the record (see People v. Khan, 139 A.D.3d 1261, 1263, 31 N.Y.S.3d 671 [2016], lvs. denied 28 N.Y.3d 932, 40 N.Y.S.3d 360, 63 N.E.3d 80 [2016] ), which establishes that he received meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712–716, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; People v. Khan, 139 A.D.3d at 1264, 31 N.Y.S.3d 671 ) and fails to provide any basis for vacating the plea.
Finally, Supreme Court did not err in denying defendant's motion to vacate the judgment of conviction. Most of the issues raised on his motion concern claims that former counsel provided ineffective assistance, which were raised (and rejected) or could have been raised on his direct appeal, as “sufficient facts appear on the record” to permit adequate review thereof and, thus, these claims are not the proper subject of a motion pursuant to CPL article 440 (CPL 440.10[2][b] ; see People v. Cuadrado, 9 N.Y.3d 362, 364–365, 850 N.Y.S.2d 375, 880 N.E.2d 861 [2007] ; People v. Anderson, 104 A.D.3d 968, 972, 960 N.Y.S.2d 548 [2013], lv. denied 21 N.Y.3d 1016, 971 N.Y.S.2d 498, 994 N.E.2d 394 [2013] ). To the extent that facts bearing on this issue do not appear on the record, the court properly denied the motion because the facts could “have readily been made to appear on the record” (CPL 440.10[3][a] ), that is, the claims could have been addressed upon former counsel's motion to withdraw from the case or upon substitute counsel's motion to withdraw defendant's plea, which was premised upon ineffective assistance of former counsel. Further, defendant's allegations are either contradicted by the record or unsupported by any other evidence or affidavits, and he failed to demonstrate any “reasonable possibility” that they were true (CPL 440.30[4] [d] ). Thus, the motion was properly summarily denied (see People v. Lagas, 111 A.D.3d 1026, 1027, 974 N.Y.S.2d 659 [2013], lv. denied 16 N.Y.3d 741, 917 N.Y.S.2d 623, 942 N.E.2d 1048 [2011] ). Defendant's remaining claims, including those raised in his pro se brief and reply brief, similarly lack merit.
ORDERED that the judgment and order are affirmed.
PETERS, P.J., MCCARTHY, CLARK and AARONS, JJ., concur.