| People v Leonard |
| 2009 NY Slip Op 04761 [63 AD3d 1278] |
| June 11, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JosephusLeonard, Appellant. |
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Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Stein, J. Appeals (1) from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered June 22, 2006, convicting defendant upon his plea of guilty of the crime of murder inthe second degree, and (2) by permission, from an order of said court, entered May 1, 2008,which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
After an argument with his stepson, defendant left the room and returned with a loaded gun.He then shot his stepson in the head, causing his death. Defendant was indicted on charges ofmurder in the second degree and criminal possession of a weapon in the second degree. Heultimately pleaded guilty to one count of murder in the second degree and was sentenced to aprison term of 20 years to life. Thereafter, defendant moved to vacate the judgment of convictionand set aside the sentence pursuant to CPL 440.10 and 440.20. County Court denied defendant'smotion, prompting this appeal from the order denying his motion and from the judgment ofconviction. We affirm.
Initially, we reject defendant's challenge to the validity of his waiver of appeal. CountyCourt's colloquy with defendant on the record was adequate to ensure that the waiver was [*2]voluntarily, knowingly and intelligently entered (see People v Romano, 45 AD3d910, 914-915 [2007], lv denied 10 NY3d 770 [2008]).
Defendant's claim of ineffective assistance of counsel survives his valid waiver of appealonly to the extent that it pertains to the voluntariness of his plea (see People v Stokely, 49 AD3d966, 968 [2008]). In this regard, defendant's argument in his pro se CPL article 440 motionand on this appeal can be distilled to a claim that his counsel failed to adequately explain to himthe availability of certain affirmative defenses. To the extent that defendant's argument concernsmatters outside the record, we are of the view that County Court properly denied defendant'sCPL article 440 motion without conducting a hearing inasmuch as it was devoid of any "swornallegations" (CPL 440.30 [4] [b]) or specific facts "substantiating his allegations that. . . defense counsel provided inadequate representation" (People v Kennedy, 46 AD3d1099, 1101 [2007], lv denied 10 NY3d 841 [2008]; see CPL 440.30 [4] [d];People v Griffin, 24 AD3d972, 974 [2005], lv denied 6 NY3d 834 [2006]).
Nor is there anything on the record which casts doubt on the voluntariness of defendant'splea. The record reflects that defendant's rights were fully explained to him and defendantindicated his understanding of those rights and his satisfaction with counsel's legal advice,including advice with respect to raising defenses to the charges and the consequences of his plea.When defendant was asked if he had any questions he wanted to ask his counsel, he said, "No."Upon our examination of the totality of the evidence, facts and law (see People v Baldi,54 NY2d 137, 147 [1981]), we cannot say that defendant was deprived of meaningfulrepresentation (see People vJohnson, 54 AD3d 1133, 1134 [2008]; People v Lawrence, 34 AD3d 984, 985 [2006]).
Defendant also contends that his plea was not voluntary because he was not advised of themaximum sentence he was facing. Although this contention survives his waiver of appeal(see People v Stokely, 49 AD3d at 968; People v Grant, 294 AD2d 671, 673[2002], lv denied 98 NY2d 730 [2002]), it is belied by the record. Furthermore, as aconsequence of the valid waiver of his right to appeal, defendant is foreclosed from challengingthe severity of his sentence (see Peoplev Lopez, 6 NY3d 248, 255-256 [2006]).
Cardona, P.J., Mercure, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment andorder are affirmed.