Opinion
2013-11-14
The PEOPLE of the State of New York, Respondent, v. David W. LAGAS, Also Known as Beaver, Appellant.
David W. Lagas, Attica, appellant pro se. Michael A. Cozzolino, Special Prosecutor, Claverack, for respondent.
David W. Lagas, Attica, appellant pro se. Michael A. Cozzolino, Special Prosecutor, Claverack, for respondent.
Before: ROSE, J.P., LAHTINEN, GARRY and EGAN JR., JJ.
ROSE, J.P.
Appeal, by permission, from an order of the County Court of Columbia County (Koweek, J.), entered July 3, 2013, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of burglary in the second degree, petit larceny, criminal mischief in the fourth degree (two counts) and burglary in the third degree, without a hearing.
In return for a joint recommendation that he be sentenced to an aggregate prison term of 10 years to be followed by five years of postrelease supervision, defendant pleaded guilty to a five-count indictment and waived his right to appeal. County Court ultimately imposed a total prison sentence of 9 1/2 years, to be followed by five years of postrelease supervision. We affirmed the conviction upon direct appeal (76 A.D.3d 384, 906 N.Y.S.2d 151 [2010],lv. denied16 N.Y.3d 741, 917 N.Y.S.2d 623, 942 N.E.2d 1048 [2011] ). Defendant thereafter moved to vacate the judgment pursuant to CPL 440.10, arguing that he did not receive the effective assistance of counsel. County Court denied the motion without a hearing. Defendant now appeals by permission, arguing that his application was improperly denied without a hearing.
We disagree and affirm. Defendant contends that his first attorney was ineffective in failing to relay his acceptance of a preindictment plea offer made by the People. Defendant's self-serving claim that he accepted the offer in a timely fashion is unsupported by any other evidence. County Court was therefore entitled to reject the claim without a hearing ( seeCPL 440.30[4] [d]; People v. Fernandez, 5 N.Y.3d 813, 814, 803 N.Y.S.2d 22, 836 N.E.2d 1144 [2005];People v. Lane, 83 A.D.3d 1118, 1118–1119, 921 N.Y.S.2d 343 [2011],lv. denied17 N.Y.3d 818, 929 N.Y.S.2d 807, 954 N.E.2d 98 [2011] ).
Similarly unsupported by evidence in the record is the assertion that defense counsel failed to advise defendant that the sentence imposed in this matter would run consecutively to a prison term he was already serving ( seeCPL 440.30[4][d] ). That purported failure, in any event, would not constitute ineffective assistance given defendant's full awareness that County Court had made no promises as to the ultimate sentence ( seeCPL 440.30[4] [c]; People v. Lopez, 8 A.D.3d 819, 820, 778 N.Y.S.2d 572 [2004],lv. denied3 N.Y.3d 708, 785 N.Y.S.2d 36, 818 N.E.2d 678 [2004];see also People v. Belliard, 20 N.Y.3d 381, 388–389, 961 N.Y.S.2d 820, 985 N.E.2d 415 [2013] ).
ORDERED that the order is affirmed.