| People v Kennedy |
| 2007 NY Slip Op 09966 [46 AD3d 1099] |
| December 20, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v KeithKennedy, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Alison M. Thorne of counsel), forrespondent.
Spain, J. Appeals (1) from a judgment of the County Court of Albany County (Breslin, J.),rendered November 23, 2005, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a controlled substance in the third degree, and (2) by permission, from anorder of said court, entered January 30, 2007, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment of conviction.
Upon the execution of a search warrant at an apartment located in the City of Albany,defendant was found in possession of heroin. Pursuant to a plea agreement, he later pleadedguilty to one count of criminal possession of a controlled substance in the third degree and wassentenced to an agreed-upon prison term of eight years with three years of postreleasesupervision. His posttrial motion to vacate the judgment pursuant to CPL 440.10 was deniedwithout a hearing. He now appeals from the judgment of conviction and the order denying hismotion to vacate.
With regard to defendant's claims on his direct appeal, we cannot agree with the People'scontention that defendant effectively waived his right to appeal. The record of the plea [*2]colloquy does not adequately reflect, as the Court of Appeals hasindicated it must in a decision subsequent to this plea, that "defendant understood that the right toappeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256[2006]) or that his oral appeal waiver was knowingly, voluntarily and intelligently made (seePeople v Callahan, 80 NY2d 273, 280 [1992]; see also People v Calvi, 89 NY2d 868,871 [1996]).
However, we find—contrary to defendant's contentions—that his plea wasknowing, voluntary and intelligent (see People v Fiumefreddo, 82 NY2d 536, 543[1993]). The plea minutes reflect that defendant was advised of—and indicated heunderstood—the trial-related rights he would be foregoing by entering a guilty plea, and ofthe consequences of so doing; he indicated he had a full chance to discuss the proof with hisattorney, that his plea was a voluntary choice, and that he was entering a plea because he was infact guilty. Defendant then answered in the affirmative when asked if he was in possession ofmore than a one-half ounce of heroin on the date, time and location as alleged in the indictment(which were recited at the plea), and he entered a valid guilty plea. Defendant made nostatements which cast doubt on his guilt or his understanding of the plea, or were inconsistentwith guilt or negated an element of the crime so as to trigger County Court's duty to question himfurther (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Riddick, 40 AD3d 1259,1260 [2007], lv denied 9 NY3d 925 [2007]). It was not required that defendant himselfrecite the elements of the crime or to engage in a recitation of the underlying facts (see People v Seeber, 4 NY3d 780,781 [2005]; People v Williams, 35AD3d 971, 972 [2006], lv denied 8 NY3d 928 [2007]).
Upon consideration of the mitigating factors urged by defendant, we are not persuaded thatthe agreed-upon eight-year sentence—which represents a midrange second felony offendersentence for this class B drug felony (see Penal Law § 70.70 [3] [b] [i] [3½ to12-year range])—is harsh or excessive. Finding no abuse of discretion or extraordinarycircumstances, we decline to reduce the sentence in the interest of justice (see CPL470.15 [6] [b]; 470.20 [6]).
Defendant further argues that he was denied the effective assistance of trial counsel basedupon counsel's alleged deficient conduct related to his suppression motions and misadviceconcerning his right to appeal following his guilty plea. Defendant also argues that his pro semotion to vacate on those grounds was improperly denied without a hearing (see CPL440.10 [1] [h]; 440.30). We find, however, that County Court did not improvidently exercise itsdiscretion in denying defendant's motion without a hearing, which was supported only by hisaffidavit reciting the chronology of his case, given the absence of any "sworn allegations" (CPL440.30 [4] [b]) substantiating his allegations that suppression was warranted or that defensecounsel provided inadequate representation, allegations which were otherwise unsupported(see CPL 440.30 [4] [d]; see alsoPeople v Woodard, 23 AD3d 771 [2005], lv denied 6 NY3d 782 [2006]). Also,upon review of the record as a whole, we do not find that defendant was deprived of meaningfulrepresentation by trial counsel (see People v Benevento, 91 NY2d 708 [1998]).Defendant's remaining claims lack merit.
Crew III, J.P., Carpinello, Rose and Lahtinen, JJ., concur. Ordered that the judgment andorder are affirmed.