| People v Provencher |
| 2010 NY Slip Op 02683 [72 AD3d 1124] |
| April 1, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v SeanD. Provencher, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Lahtinen, J. Appeals (1) from a judgment of the County Court of Albany County (Breslin,J.), rendered September 13, 2007, convicting defendant upon his plea of guilty of the crime ofgrand larceny in the third degree, and (2) by permission, from an order of said court, enteredNovember 10, 2008, which denied defendant's motion pursuant to CPL 440.10 to vacate thejudgment of conviction, without a hearing.
On separate days over the period of about a week in September 2006, defendant allegedlystole three motor vehicles in Albany County—a 2004 GMC Envoy, a 2007 GMC Yukon,and a 2006 Ford Expedition—resulting in a six-count indictment charging three counts ofgrand larceny in the third degree and three counts of criminal possession of stolen property in thethird degree. He pleaded guilty in May 2007 to one count of grand larceny in the third degreeregarding the 2004 GMC Envoy, and agreed to a sentence of 3½ to 7 years as a secondfelony offender. His sentencing was adjourned in July 2007 when he informed County Court thathe had filed a CPL article 440 motion challenging his prior felony conviction. That motion wasdenied in August 2007 by Supreme Court (Lamont, J.), and defendant was sentenced inSeptember 2007 by County Court (Breslin, J.) to the agreed-upon prison term. In October 2008,he made a CPL 440.10 motion seeking to have the September 2007 judgment of conviction [*2]vacated. The motion was denied without a hearing. Defendantappeals from his judgment of conviction and, by permission, from the denial of his CPL 440.10motion.
We are unpersuaded by defendant's argument that County Court erred in not conducting ahearing pursuant to CPL 400.21 when he challenged the constitutionality of his prior felonyconviction. Where a defendant raises a constitutional issue at sentencing regarding a priorfelony, the court must "ascertain the nature of [the defendant's] challenge and . . .afford [the defendant] the opportunity to specify the basis therefor" (People v Pierre, 30 AD3d 897,897 [2006]). When faced with a sufficiently controverted prior felony, the court must conduct ahearing (see CPL 400.21 [5], [7]). Here, County Court adjourned defendant's sentencingdate upon learning that he had filed a CPL article 440 motion in Supreme Court (where he hadpleaded guilty to the prior felony in February 2006), challenging his prior felony conviction asbeing violative of double jeopardy. Thereafter, Supreme Court rendered a written decision notinga potential problem with a misdemeanor conviction from Rensselaer County. However, thevalidity of the misdemeanor conviction was not before Supreme Court and, even if defective,would not have changed defendant's status as a second felony offender. Supreme Court found thefelony conviction from Albany County to be proper and denied defendant's motion in August2007. When he appeared again for sentencing before County Court in September 2007, hecontinued to assert a constitutional defect in the prior felony and County Court permitted him toset forth his position. There was no need for a factual hearing since he was essentially seeking toreargue the unfavorable ruling he had received from Supreme Court (see People v Daley,302 AD2d 745, 746-747 [2003]).
Defendant also contends that his pro se CPL article 440 motion made in October 2008should not have been denied without a hearing. Most of the many grounds set forth indefendant's motion are comprised of a conclusory listing of purported errors that are unsupportedby factual allegations in his affidavit and, accordingly, no hearing was necessary (see People v Woodard, 23 AD3d771, 772 [2005], lv denied 6 NY3d 782 [2006]). County Court addressed in itswritten decision the argument, discernible from the motion papers, in which defendant contendedthat his May 2007 plea should be vacated on a double jeopardy ground different from the doublejeopardy assertion he had made at sentencing. The argument in the CPL article 440 motion waspremised upon the fact that he had also pleaded guilty in Saratoga County to a charge arisingfrom his possession of one of the vehicles he had stolen in September 2006 in Albany County,although the Saratoga County charge involved a vehicle (2007 GMC Yukon) for which thecharge in Albany County had been dismissed. County Court, which had handled the plea andsentencing, noted its familiarity with the charges in both counties and, importantly, set forth thatthe Albany County plea preceded the Saratoga County plea. Hence, even assuming a viabledouble jeopardy argument exists regarding these two convictions, it would have to be directed atthe latter conviction in Saratoga County, and there is nothing in this record (or in the separateappeal pending in this Court from the Saratoga County conviction) indicating that defendant hasasserted such an argument in Saratoga County. Nor was there any reason, in light of theuncontested relevant facts and the court's knowledge of the history of the case, to hold a hearing(see People v Robetoy, 48 AD3d881, 883 [2008]). Indeed, defendant's counsel acknowledges on appeal that the AlbanyCounty plea was entered first and, thus, County Court correctly concluded that there was nodouble jeopardy issue as to the Albany County conviction.
Mercure, J.P., Malone Jr., McCarthy and Garry, JJ., concur. Ordered that the judgment andorder are affirmed.