| People v Morales |
| 2014 NY Slip Op 05214 [119 AD3d 1082] |
| July 10, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York, Respondent, vRaul Morales, Appellant. |
David E. Woodin, Catskill, for appellant.
Charles O. Bucca, Acting District Attorney, Catskill (Danielle D. McIntosh ofcounsel), for respondent.
Garry, J. Appeals (1) from a judgment of the County Court of Greene County (PulverJr., J.), rendered October 4, 2011, convicting defendant upon his plea of guilty of thecrime of attempted rape in the first degree, and (2) by permission, from an order of saidcourt, entered September 27, 2013, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment of conviction, without a hearing.
Defendant was charged in two felony complaints with predatory sexual assaultagainst a child for sexual intercourse and other acts perpetrated against two underagefemale victims. Defendant appeared before the grand jury and, under oath, acknowledgedthat he had discussed his appearance with his attorney and had elected to waive immunityand testify. He then signed a written waiver of immunity in the grand jury's presence andproceeded to testify. The grand jury handed up a nine-count indictment charging himwith three counts of sexual abuse in the first degree and six counts of predatory sexualassault against a child. Following negotiations, defendant pleaded guilty to one count ofattempted rape in the first degree in satisfaction of all charges, in exchange for a prisonsentence of 10 years, followed by 10 years of postrelease supervision. As part of the pleaagreement, he waived his right to appeal. County Court thereafter sentenced defendant tothe agreed-upon term and further ordered him to pay fees and surcharges. Defendantappeals.
[*2] During the pendency of his appealfrom the judgment of conviction, defendant moved pursuant to CPL 440.10 to vacate thejudgment contending, among other things, that he was denied the effective assistance ofcounsel by virtue of counsel's failure to advise him of his defense of transactionalimmunity. County Court denied the motion without a hearing and defendant appeals, bypermission, from that order.
We reject defendant's contention that there was any defect in his waiver of immunity,such that his testimony before the grand jury rendered him immune from prosecution forthe underlying crimes. Defendant unequivocally acknowledged under oath before thegrand jury that he had reviewed the waiver of immunity with counsel, had been advisedas to the ramifications of signing it—including its effect on his right toimmunity—and wished to waive immunity and testify. This acknowledgment,together with the written waiver that he signed in the grand jury's presence, fully satisfiedthe dictates of CPL 190.45 (see People v Heidelmark, 214 AD2d 767, 769[1995], lv denied 85 NY2d 973 [1995]; People v Young, 205 AD2d 908,909-910 [1994]).
Turning to defendant's claim that he was deprived of the effective assistance ofcounsel, to the extent that such claim is alleged to have impacted the voluntariness of hisplea, it is unpreserved for this Court's review, as the record does not indicate thatdefendant moved to withdraw his plea (see People v Long, 117 AD3d 1326, 1327 [2014]; People v Griffin, 117 AD3d1339 [2014]).[FN*]In any event, defendant's claim restsprimarily on the assertion that counsel should have moved to dismiss the indictmentbased upon defendant's alleged immunity, and a claim of ineffective assistance cannot beestablished by counsel's failure to make a motion "that has little or no chance of success"(People v Caban, 5 NY3d143, 152 [2005]; see Peoplev Bahr, 96 AD3d 1165, 1167 [2012], lv denied 19 NY3d 1024 [2012]).The record shows that counsel filed appropriate pretrial motions and negotiated afavorable plea for defendant, who otherwise faced a possible sentence of six consecutivelife terms in prison (see Peoplev Sylvan, 108 AD3d 869, 870 [2013], lv denied 22 NY3d 1091 [2014];People v Leszczynski, 96AD3d 1162, 1163 [2012], lv denied 19 NY3d 998 [2012]).
Defendant's contention that County Court erred in imposing a supplemental sexoffender victim fee is foreclosed by his valid waiver of the right to appeal (see People v Frazier, 57 AD3d1460, 1461 [2008], lv denied 12 NY3d 783 [2009]; People v Lemos, 34 AD3d343, 343 [2006], lv denied 8 NY3d 924 [2007]). Defendant's claim that hischallenge survives the waiver in that it concerns the legality of his sentence is withoutmerit, as the various fees and surcharges [*3]mandated byPenal Law § 60.35 are not a part of a defendant's sentence (see People v Guerrero, 12NY3d 45, 47-48 [2009]; People v Ryan, 83 AD3d 1128, 1130 [2011]).
Finally, County Court's summary denial of defendant's motion to vacate the judgmentof conviction pursuant to CPL 440.10 was proper, as the record on defendant's directappeal was sufficient to review his contention that he received the ineffective assistanceof counsel with respect to statutory immunity, and defendant presented no new evidenceon his motion (see CPL 440.10 [2] [b]; People v Kindred, 100 AD3d 1038, 1041 [2012], lvdenied 21 NY3d 913 [2013]; People v Trombley, 91 AD3d 1197, 1203 [2012], lvdenied 21 NY3d 914 [2013]). Defendant's remaining contentions have beenexamined and found to be without merit.
Peters, P.J., Rose, Egan Jr. and Clark, JJ., concur. Ordered that the judgment andorder are affirmed.
Footnote *:Defendant contends thathis motion to vacate the judgment of conviction preserved this issue for our reviewwithin the context of his direct appeal. Where, as here, the propriety of a guilty plea iscontested, and the issue may be reviewed by reference to the record, preservation of theissue for direct appeal is accomplished by motion to withdraw the plea (see CPL220.60 [3]). By contrast, when the record is insufficient to support review, the vehicle forplacing the issue before the trial court is through a CPL article 440 motion to vacate thejudgment of conviction. To the extent that our prior decisions might be read to suggestthat a motion to vacate the judgment of conviction is sufficient to preserve an issue forreview on direct appeal, they should not be followed.