| People v Brandon |
| 2015 NY Slip Op 08000 [133 AD3d 901] |
| November 5, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Chamma Brandon, Also Known as Kareem,Appellant. |
Lisa A. Burgess, Indian Lake, for appellant, and appellant pro se.
Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel),for respondent.
Lynch, J. Appeals (1) from a judgment of the County Court of Clinton County(Ryan, J.), rendered December 18, 2012, convicting defendant upon his plea of guilty ofthe crimes of criminal sale of a controlled substance in the third degree (two counts),criminal sale of a controlled substance in or near school grounds and criminal possessionof a controlled substance in the third degree (six counts), and (2) by permission, from anorder of said court, entered May 30, 2014, which denied defendant's motion pursuant toCPL 440.10 to vacate the judgment of conviction, without a hearing.
Defendant was charged in a nine-count indictment with criminal sale of a controlledsubstance in the third degree (two counts), criminal sale of a controlled substance in ornear school grounds and criminal possession of a controlled substance in the third degree(six counts). Defendant was initially represented by attorney Mark Anderson. FollowingCounty Court's denial of defendant's Mapp application, defendant requested newcounsel and Anderson renewed an earlier request to withdraw. County Court ultimatelyappointed attorney Matthew Favro to represent defendant in September 2012. In October2012, defendant pleaded guilty to the indictment and was sentenced, as a second felonyoffender, to an aggregate prison term of 10 years with three years of postreleasesupervision. Defendant's subsequent motion pursuant to CPL article 440 to vacate thejudgment of conviction was denied without a hearing. Defendant appeals from both thejudgment of conviction and, by permission of this Court, from the order [*2]denying his CPL article 440 motion.
We affirm. Defendant initially contends that the integrity of the grand juryproceeding was compromised because the People failed to present evidence concerning awitness's motivation and credibility. Having failed to raise this specific contention in hismotion to dismiss the indictment, the argument has not been preserved for our review(see CPL 210.20 [3]; 470.05 [2]; People v Goldston, 126 AD3d 1175, 1176-1177 [2015],lv denied 25 NY3d 1201 [2015]). In any event, "[t]he People generally enjoywide discretion in presenting their case to the [g]rand [j]ury" and were not required topresent such evidence (People v Lancaster, 69 NY2d 20, 25 [1986], certdenied 480 US 922 [1987]; see People v Goldston, 126 AD3d at 1177;People v Ramjit, 203 AD2d 488, 489 [1994], lv denied 84 NY2d 831[1994]). Having entered a plea of guilty, defendant forfeited his claim that he was denieda speedy trial under CPL 30.30 (see People v O'Brien, 56 NY2d 1009, 1010[1982]; People v Friscia, 51 NY2d 845, 847 [1980]; People v Irvis, 90 AD3d1302, 1303 [2011], lv denied 19 NY3d 962 [2012]). Nor did he preserve thisclaim by raising it in a pretrial motion to dismiss (see People v Devino, 110 AD3d 1146, 1147 [2013]).
Defendant's assertion that he was denied the effective assistance of counsel isunpersuasive. Defendant complains that Anderson failed to listen to an audiotape of theoral application for a search warrant, which authorized a search of his car and hotelroom, resulting in the seizure of both cocaine and heroin. As such, defendant maintainsthat counsel failed to assess whether there was probable cause for the issuance of thewarrant. The record shows that after granting defendant's request for a Mapphearing, County Court concluded, upon listening to the audiotape, that a Mapphearing was unnecessary since the detective applying for the warrant disclosed that theinvolved confidential informant (whose name was not revealed) had participated in tworecent controlled buys that were monitored by himself or other members of theAdirondack Drug Task Force. This information satisfied the reliability prong of theAguilar-Spinelli test and provided probable cause to issue the warrant (seePeople v Serrano, 93 NY2d 73, 78 [1999]; People v Brucciani, 82 AD3d 1001, 1002 [2011], lvdenied 17 NY3d 814 [2011]; People v Davenport, 231 AD2d 809, 810[1996], lv denied 89 NY2d 921 [1996]). Defendant further asserts that counselwould have been able to discern the identity of the confidential informant and challengethe People's failure to inform the grand jury of that witness's motivation and background.As discussed, the People had no duty to present such proof. The failure to make a motionwith "little or no chance of success" does not constitute ineffective assistance (People v Clarke, 110 AD3d1341, 1345 [2013], lv denied 22 NY3d 1197 [2014] [internal quotationmarks and citations omitted]). Viewed in totality, and considering that counsel madeappropriate pretrial motions to compel discovery and moved for Sandoval,Wade and Mapp hearings, we are satisfied that defendant receivedmeaningful representation (see People v Baldi, 54 NY2d 137, 147 [1981]; People v Brabham, 126 AD3d1040, 1044 [2015], lv denied 25 NY3d 1160 [2015]).
We are unpersuaded by defendant's claim that County Court erred by imposingrestitution at sentencing without first offering him an opportunity to withdraw hisplea.[FN*] Sincedefendant pleaded guilty to the indictment, after rejecting a proposed plea offer,sentencing [*3]remained within the court's discretion,with the qualifier that County Court represented that it would not impose a sentence inexcess of 48 years or a fine. That the court required the payment of $500 in restitution(based on the funds used in the two controlled buys), which is separate and distinct froma fine (see Penal Law §§ 60.05 [7]; 60.27), does not provide abasis for defendant to withdraw his plea (compare People v McCarthy, 56 AD3d 904, 905 [2008]; People v Branch-El, 12 AD3d785, 786 [2004], lv denied 4 NY3d 761 [2005]; People v Toms, 293AD2d 768, 769 [2002]).
Finally, we conclude that County Court properly denied defendant's CPL 440.10motion without a hearing. On a motion to vacate a judgment of conviction, a hearing isonly required if the submissions "show that the nonrecord facts sought to be establishedare material and would entitle [the defendant] to relief" (People v Satterfield, 66NY2d 796, 799 [1985]; see CPL 440.30 [5]; People v Hennessey, 111 AD3d 1166, 1168-1169 [2013]).Since defendant's claim that Anderson had a conflict of interest is based solely ondefendant's own affidavit, County Court did not abuse its discretion in rejecting the claim(see People v Leader, 116AD3d 1239, 1240 [2014], lv denied 24 NY3d 1045 [2014]; People v Vallee, 97 AD3d972, 974 [2012], lv denied 20 NY3d 1104 [2013]). We also rejectdefendant's further claim that his plea was involuntary because Favro erroneouslyadvised him that he faced a maximum sentence between 48 and 72 years since, duringthe plea proceeding, County Court expressly limited the potential sentence to 48 years.Moreover, as counsel correctly cautioned, those counts of the indictment chargingdefendant with possession of both heroin and cocaine found in his hotelroom—two possessory offenses occurring at the same time—may constituteseparate and distinct offenses for purposes of sentencing (see Penal Law§ 70.25 [2]; People v Laureano, 87 NY2d 640, 643 [1996]; seealso People v Bryant, 92 NY2d 216, 230-231 [1998]; People v Smith, 309AD2d 1081, 1083 [2003]). Nor is there any support for defendant's contention that Favroencouraged him to plead to the indictment because County Court was sympathetic todrug offenders. The record otherwise shows that defendant's plea was knowingly,intelligently and voluntarily made.
Peters, P.J., Lahtinen and McCarthy, JJ., concur. Ordered that the judgment andorder are affirmed.
Footnote *:Defendant's failure toobject at sentencing does not preclude appellate review of this issue (see People v Culcleasure, 75AD3d 832, 832 [2010]; People v Snyder, 23 AD3d 761, 762 [2005]).