| People v Hyson |
| 2008 NY Slip Op 08555 [56 AD3d 890] |
| November 13, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Joseph Hyson,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Carpinello, J. Appeals (1) from a judgment of the County Court of Albany County (Breslin,J.), rendered February 1, 2006, convicting defendant upon his plea of guilty of the crime ofdriving while intoxicated, and (2) by permission, from an order of said court, entered May 3,2006, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment ofconviction, without a hearing.
In satisfaction of a four-count indictment, defendant pleaded guilty to driving whileintoxicated as a felony and was sentenced to 1 to 3 years in prison. Defendant's subsequent pro seCPL 440.10 motion to vacate the judgment of conviction was thereafter denied by County Court.Defendant now appeals from the judgment of conviction and, by permission, from the orderdenying his CPL article 440 motion.
Defendant initially argues that his guilty plea was involuntary because the colloquy failed toestablish the elements of the crime and he entered the plea without fully understanding thesentencing aspect of the plea agreement. Defendant's waiver of the right to appeal precludes hischallenge to the sufficiency of the plea allocution (see People v Jackson, 30 AD3d 824, 825 [2006]). In any event, arecitation of the elements of the crime is not required where, as here, [*2]defendant "provided unequivocal affirmative responses to thecourt's questions, never made statements negating his guilt and indicated that he was entering theplea because he was, in fact, guilty" (People v Williams, 35 AD3d 971, 972 [2006], lv denied 8NY3d 928 [2007]; see People vAnderson, 38 AD3d 1061, 1062 [2007], lv denied 8 NY3d 981 [2007]).Defendant further acknowledged, after conferring with counsel, that he was pleading guilty withthe understanding as to the range of sentence he could receive, and he was, in fact, sentenced inaccordance with the plea agreement.
Defendant also contends, in the context of his CPL 440.10 motion, that he was denied theeffective assistance of counsel with respect to all three of the attorneys who represented him inthis matter. As defendant's first attorney had not been retained by defendant to represent him afterhis arraignment, this attorney committed no impropriety by failing to notify defendant of aninitial plea offer or of pending grand jury proceedings. Notably, the preindictment plea offer wasmade before the People realized that one of the initial charges should have been a class D felonyinstead of a misdemeanor due to defendant's prior criminal record. In addition, the Peopledirectly notified defendant of the first date set for grand jury proceedings and defendant's secondattorney, who also attempted to notify defendant of said proceedings, was likewise told bydefendant that he would again be seeking new counsel and to take no action on his behalf.Moreover, the failure to notify the People of a defendant's desire to testify before the grand jurydoes not, standing alone, amount to ineffective assistance of counsel (see People v Ballard, 13 AD3d670, 672 [2004], lv denied 4 NY3d 796 [2005]; People v Gibson, 2 AD3d 969, 973 [2003], lv denied 1NY3d 627 [2004]).
The plea allocution also refutes defendant's contention that his third counsel providedineffective assistance by not explaining any of his possible trial defenses and leading him tobelieve that he would definitely receive a split sentence of six months in jail and five years ofprobation rather than the prison term he did receive (see People v Anderson, 38 AD3d at1063; People v Williams, 35 AD3d at 973). The record likewise contradicts defendant'scontention that said counsel rejected a plea offer in August 2005 without his consent and in hisabsence. As to defendant's claim that County Court should have conducted a hearing on his CPLarticle 440 motion, no such hearing was required since "the material submitted in support of themotion, as well as the record of the underlying proceeding, [were] sufficient for the court todecide [it]" (People v Robetoy, 48AD3d 881, 883 [2008]; see Peoplev Ellis, 53 AD3d 776, 777 [2008]).
Finally, given defendant's unchallenged waiver of the right to appeal, he is precluded fromarguing that his sentence is harsh and excessive (see People v Pickens, 45 AD3d 1187, 1188 [2007], lvdenied 10 NY3d 769 [2008]; Peoplev Crudup, 45 AD3d 1111, 1112 [2007]). We have reviewed defendant's remainingcontentions and find them lacking in merit.
Mercure, J.P., Spain, Kane and Kavanagh, JJ., concur. Ordered that the judgment and orderare affirmed.