| People v Hayes |
| 2010 NY Slip Op 01708 [71 AD3d 1187] |
| March 4, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Earl Hayes,Appellant. |
—[*1] James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Sullivan County (Ledina, J.),rendered August 28, 2007, convicting defendant upon his plea of guilty of the crimes of criminalpossession of a forged instrument in the second degree (three counts), criminal possession ofstolen property in the third degree, scheme to defraud in the first degree and identity theft in thesecond degree.
After it was reported to the Sullivan County Sheriff's Department that defendant hadattempted to use a forged credit card at Wal-Mart, defendant was arrested in the store's parkinglot and thereafter charged in a 29-count indictment with 13 counts of criminal possession of aforged instrument in the second degree, seven counts of unlawful possession of personalidentification information in the third degree, grand larceny in the fourth degree, criminalpossession of stolen property in the third degree, two counts of identity theft in the third degree,three counts of identity theft in the second degree, scheme to defraud in the first degree andaggravated unlicensed operation of a motor vehicle in the second degree.[FN*]In full satisfaction of [*2]the indictment, defendant subsequentlypleaded guilty to three counts of criminal possession of a forged instrument in the second degree,criminal possession of stolen property in the third degree, scheme to defraud in the first degreeand identity theft in the second degree. Prior to sentencing, defendant moved pro se to withdrawhis guilty plea (see CPL 220.60), alleging ineffective assistance of counsel. CountyCourt granted counsel's request to be relieved, appointed new counsel and thereafter denied themotion without a hearing. Defendant was sentenced as a second felony offender to an aggregateprison term of 5½ to 11 years. Defendant appeals.
As a result of his knowing, voluntary and intelligent waiver of his right to appeal (see People v Lopez, 6 NY3d 248,256 [2006]), defendant has given up his right to challenge County Court's ruling on hissuppression motion (see People v Kemp, 94 NY2d 831, 833-834 [1999]). There is nosupport in the record for defendant's contention that his appeal waiver was the result of coercion(see People v Holman, 89 NY2d 876, 878 [1996]), particularly considering the court'sthorough colloquy and defendant's affirmative statements that he had discussed the waiver withcounsel and that he agreed to it of his own free will.
We are not persuaded by defendant's contention that he was entitled to a hearing on hismotion to withdraw his guilty plea, in which he alleged that counsel's inadequate representationwith respect to the suppression hearing rendered his subsequent guilty plea involuntary. "[I]t iswell settled that 'the question of whether a defendant should be permitted to withdraw his plearests in the discretion of the trial court and hearings are granted only in rare instances' "(People v D'Adamo, 281 AD2d 751, 752 [2001], quoting People v Davis, 250AD2d 939, 940 [1998]). Here, County Court provided defendant with a "reasonable opportunityto present his contentions" (People v Tinsley, 35 NY2d 926, 927 [1974]) and assignedcounsel to assist him. In a detailed decision, County Court explained that the motion was deniedbecause the record did not contain evidence that any alleged ineffectiveness of counsel affectedthe plea bargaining process or otherwise cast doubt on the voluntariness of defendant's guiltyplea (see People v Branton, 35AD3d 1035, 1036 [2006], lv denied 8 NY3d 982 [2007]). Notably, during his pleacolloquy, defendant specifically stated that he had not been coerced, was satisfied with counsel'srepresentation and nothing he said negated his admissions of guilt. Under these circumstances, itcannot be said that County Court abused its discretion in denying the motion without a hearing.
To the extent that defendant's pro se arguments claim that his counsel provided him witherroneous information, either inadvertently or intentionally, such arguments involve mattersoutside the record and have been appropriately presented by defendant in several motions tovacate the judgment of conviction (see CPL art 440; People v Fiske, 68 AD3d 1149, 1150 [2009]), all of whichapparently have been denied by County Court and those orders are not the proper subjects of thisappeal. With respect to those matters on the record, considering the circumstances of this case,particularly the fact that counsel effectively made pretrial motions leading to the suppression ofcertain evidence and negotiated a very favorable plea agreement, we are satisfied that defendantreceived meaningful representation (see People v Ford, 86 NY2d 397, 404 [1995]).
Nor are we convinced that the sentence imposed is illegal. Specifically, defendant contendsthat the sentence imposed for his conviction of identity theft in the second degree should havebeen set to run concurrently with, rather than consecutive to, the three concurrent sentencesimposed for his convictions of criminal possession of a forged instrument in the second degree.Defendant was found guilty of identity theft based upon his knowing use of a credit cardbelonging to another to obtain more than $500 worth of goods (see Penal Law §190.79 [1]) and [*3]of the three criminal possession of a forgedinstrument charges based upon his knowing possession of three forged credit cards (seePenal Law § 170.25). Inasmuch as the crimes are distinct and the charges arose fromseparate acts, the imposition of a consecutive sentence for the identity theft conviction was notillegal (see Penal Law § 70.25 [2]; People v Perkins, 56 AD3d 944, 946 [2008], lv denied 12NY3d 786 [2009]).
Finally, defendant's allegation that exculpatory evidence was improperly withheld from himin violation of Brady v Maryland (373 US 83 [1963]) is not preserved for our review (see People v Kearney, 39 AD3d964, 966 [2007], lv denied 9 NY3d 846 [2007]).
Cardona, P.J., Mercure, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Four counts of the indictmentwere dismissed by County Court.