| People v Robetoy |
| 2008 NY Slip Op 01449 [48 AD3d 881] |
| February 21, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Andrea K.Robetoy, Appellant. |
—[*1] Richard J. McNally, Jr., District Attorney, Troy (Craig Ginsberg, Law Intern), forrespondent.
Kavanagh, J. Appeal, by permission, from an order of the County Court of RensselaerCounty (McGrath, J.), entered June 26, 2006, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment convicting her of the crimes of robbery in the third degree androbbery in the second degree (two counts), without a hearing.
Defendant was arrested on August 23, 2002 and charged with robbery in the third degree andtwo counts of robbery in the second degree stemming from three separate bank robberies thatoccurred in August 2002. Defendant pleaded guilty to the counts as charged in the indictment andwas sentenced as a second felony offender[FN*]to concurrent prison sentences of 3½ to 7 years for the third degree robbery conviction andtwo 10-year sentences for the second degree robbery convictions. As part of her plea, defendantwaived her right to appeal from the judgment of conviction. Subsequently, defendant filed a CPLarticle 440 motion claiming that [*2]she received ineffectiveassistance of counsel as the result of her trial counsel's failure to pursue an intoxication defenseon her behalf based on her combined use of Dextromethorphan (hereinafter DXM), a substancefound in cough syrup, and her prescribed dose of Lithium. County Court denied the motion,without a hearing. A Justice of this Court granted defendant permission to appeal from CountyCourt's order.
Defendant's claim of ineffective assistance of counsel based upon her counsel's failure topursue an intoxication defense is without merit. Where, as here, there is a lack of competentevidence that defendant exhibited any significant signs of intoxication while committing thecrimes in question or that her mental state at the time she committed these offenses was affectedby the substances she consumed, the failure to pursue an intoxication defense will not constituteineffective assistance of counsel (see People v Gaines, 83 NY2d 925, 927 [1994]; People v Van Ness, 43 AD3d 553[2007], lv denied 9 NY3d 965 [2007]; People v Park, 12 AD3d 942, 943 [2004]).
Defendant's claim that she was intoxicated as a result of her consumption of DXM andLithium at the time she committed the robberies is not supported in the record. To the contrary,her statement to the police recounting in detail the specifics of each robbery—includingthe manner in which each was committed, the amount of money taken and a description of thedisguises she employed to hide her identity—belies her claim that she was intoxicated atthe time of the robberies. Her statement to the police that she made on the day of her arrest,wherein she made no claim of intoxication, coupled with eyewitness accounts as to how thesecrimes were committed, establish that defendant was not only well aware of what she was doing,but also that her clear objective was to forcibly steal money from the banks.
It must also be noted that the evidence of defendant's perpetration of these crimes wasoverwhelming. In the face of that evidence, defense counsel was able to procure an advantageousplea bargain for defendant and provide her with meaningful representation (see People vBenevento, 91 NY2d 708 [1998]; People v Gregory, 290 AD2d 810, 811 [2002],lv denied 98 NY2d 675 [2002]).
As to the claim that County Court erred by failing to conduct a hearing on her motion, ahearing is not required when the material submitted in support of the motion, as well as therecord of the underlying proceeding, are sufficient for the court to decide the motion (seeCPL 440.30 [1]; People v Griffin,24 AD3d 972, 974 [2005], lv denied 6 NY3d 834 [2006]). Given that the judgehearing the motion also presided over the prior proceedings, his history with this case, combinedwith the submissions received in connection with this motion, provided ample basis upon whichthe court could decide the application without a hearing (see People v Demetsenare, 14 AD3d 792, 793 [2005]).
Cardona, P.J., Carpinello, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed.
Footnote *: At the time of her arrest andconviction, defendant was serving a five-year period of probation for an August 21, 2001conviction of forgery in the second degree.