| People v Lagas |
| 2008 NY Slip Op 02508 [49 AD3d 1025] |
| March 20, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v David W.Lagas, Also Known as Beaver, Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Peters, J.P. Appeals (1) from a judgment of the County Court of Columbia County (Czajka,J.), rendered September 6, 2006, convicting defendant upon his plea of guilty of the crimes ofburglary in the third degree, criminal mischief in the second degree, criminal mischief in thefourth degree and petit larceny, and (2) by permission, from an order of said court, entered June12, 2007, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment ofconviction, without a hearing.
After waiving his right to court-appointed counsel, defendant pleaded guilty to the crimes ofburglary in the third degree, criminal mischief in the second degree, criminal mischief in thefourth degree and petit larceny. Pursuant to the plea agreement, defendant was thereaftersentenced as a second felony offender to 2 to 4 years in prison for the convictions of burglary inthe third degree and criminal mischief in the second degree and one year for the convictions ofcriminal mischief in the fourth degree and petit larceny, all to run concurrently, as well asrestitution. A subsequent CPL 440.10 motion was denied without a hearing. Defendant nowappeals both from the judgment of conviction and, by permission, from the order denying hisCPL 440.10 motion.[*2]
Defendant initially contends that his guilty plea wasobtained in violation of his right to counsel. We disagree. When a defendant waives his right tocounsel, the trial court must conduct an inquiry to ensure the waiver is made knowingly,voluntarily and intelligently (see People v Arroyo, 98 NY2d 101, 103 [2002]; accord People v Maraj, 44 AD3d1090, 1092 [2007]). Here, the record reveals that County Court conducted a searchinginquiry, which included inquiries into defendant's age, education, his mental and physicalcondition, and whether he understood his right to counsel and was freely waiving it. We aretherefore satisfied that County Court established that defendant's waiver of counsel was knowing,voluntary and intelligent (see People vMcEachin, 29 AD3d 1221, 1222 [2006], lv denied 7 NY3d 903 [2006]; People v Whitted, 16 AD3d 905,907-908 [2005], lv denied 4 NY3d 892 [2005]).[FN*]
We also find defendant's contention that County Court erred in denying his CPL 440.10motion without a hearing to be without merit. Here, as defendant's claim that his guilty plea wasnot knowingly, voluntarily and intelligently entered can be determined on the record and wasreviewable on direct appeal, County Court properly denied the motion without a hearing(see CPL 440.10 [2] [b]; Peoplev Lahon, 17 AD3d 778, 780 [2005], lv denied 5 NY3d 790 [2005]; People v Beverly, 5 AD3d 862,865 [2004], lv denied 2 NY3d 796 [2004]). Furthermore, as defendant's claim that hisright to counsel was violated in proceedings prior to his plea was based on facts that, withdefendant's due diligence, could have been placed on the record enabling review on direct appeal,no hearing was required (see CPL 440.10 [3]; People v Berezansky, 229 AD2d768, 771 [1996], lv denied 89 NY2d 919 [1996]). Finally, defendant's remaining claimswere either waived by his guilty plea (see People v Parilla, 8 NY3d 654, 659 [2007]; People vDennis, 223 AD2d 814, 815 [1996], lv denied 87 NY2d 972 [1996]) or are too vagueand unsupported to warrant a hearing (see People v Chaffee, 30 AD3d 763, 765 [2006], lv denied7 NY3d 846 [2006]).
Carpinello, Kane, Kavanagh and Stein, JJ., concur. Ordered that the judgment and order areaffirmed.
Footnote *: Notably, a court-appointedadvisory attorney was present at the time the plea was entered.