| People v Nicholson |
| 2008 NY Slip Op 03527 [50 AD3d 1397] |
| April 24, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v NyronNicholson, Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Ian H. Silverman of counsel), forrespondent.
Malone Jr., J. Appeal, by permission, from an order of the County Court of RensselaerCounty (McGrath, J.), entered April 9, 2007, which denied defendant's motion pursuant to CPL440.10 and 440.20 to vacate the judgment convicting him of the crime of attempted criminal saleof a controlled substance in the third degree and to set aside the sentence, without a hearing.
In satisfaction of two indictments charging him with numerous drug-related crimes,defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree.Under the terms of the plea agreement, he waived his right to appeal, agreed to be sentenced to 3to 9 years in prison and signed a written "cooperation" agreement requiring him to assist lawenforcement officials in certain investigations. At sentencing, defendant admitted that he did notfulfill the terms of the cooperation agreement and, as result, County Court imposed an enhancedsentence of 4 to 12 years in prison. No direct appeal followed, but defendant eventually broughtthe present CPL article 440 motion seeking to vacate the judgment of conviction or, alternatively,to set aside the sentence. County Court denied the motion and this Court granted permission toappeal.
Initially, defendant claims that the written cooperation agreement cannot be considered partof the plea agreement because it was not referred to by that name at the plea hearing and [*2]that, therefore, the enhancement of his sentence based upon hisfailure to comply with it was improper. Preliminarily, we note that defendant is not precluded byhis waiver of appeal from raising this claim (see People v Terrell, 41 AD3d 1044, 1045 [2007]; People v Hastings, 24 AD3d 954,955 [2005]). Nevertheless, we find it to be without merit. Viewed in the context of the pleaproceedings, the cooperation agreement was signed by defendant and his counsel the same daythat defendant entered his guilty plea and it is clearly the agreement referenced at the pleahearing. The fact that it was not identified as such in open court is understandable given thesensitive nature of the subject matter and the need for confidentiality. Significantly, prior todefendant's entry of his guilty plea, County Court expressly stated that the execution of thewritten agreement was one of the terms of the plea agreement, and defendant communicated hisunderstanding on the record. County Court informed defendant that if he failed to comply withthe terms of the plea agreement, it would not be obligated to impose the promised sentence. Inview of the foregoing, we find no error in County Court's imposition of an enhanced sentencebased upon defendant's failure to comply with the terms of the plea agreement (see People vFiggins, 87 NY2d 840, 841 [1995]; People v Davis, 30 AD3d 893, 894-895 [2006], lv denied 7NY3d 847 [2006]).
Defendant further contends that he was deprived of the effective assistance of counsel. Thisclaim, however, survives defendant's waiver of appeal only to the extent that it impacts thevoluntariness of his plea (see People vHall, 16 AD3d 848 [2005], lv denied 4 NY3d 887 [2005]; People vWhite, 300 AD2d 830, 832 [2002], lvs denied 99 NY2d 586, 633 [2003]). Of themany assertions advanced by defendant in this regard, the only one that arguably does so is hisclaim that counsel erroneously failed to make a motion to withdraw the plea after the sentencewas enhanced based upon a condition that was allegedly not a part of the plea agreement.However, inasmuch as this argument could have been raised on direct appeal, it is not the propersubject of a CPL 440.10 motion (see CPL 440.10 [2] [c]; People v Hickey, 277AD2d 511, 511 [2000], lv denied 95 NY2d 964 [2000]). In any event, given defendant'sadmitted failure to comply with the cooperation agreement that was an integral part of the pleaagreement, counsel's failure to make a motion to withdraw did not deprive defendant ofmeaningful representation (see People vRose, 41 AD3d 1033, 1035 [2007], lv denied 9 NY3d 926 [2007]; People vTyler, 260 AD2d 796, 798 [1999], lv denied 93 NY2d 980 [1999]).
Cardona, P.J., Carpinello, Lahtinen and Kavanagh, JJ., concur. Ordered that the order isaffirmed.