| People v Hoffler |
| 2010 NY Slip Op 05607 [74 AD3d 1632] |
| June 24, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MichaelHoffler, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Peters, J.P. Appeal, by permission, from that part of an order of the County Court of AlbanyCounty (Herrick, J.), entered April 28, 2008, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment convicting him of the crimes of criminal sale of a controlledsubstance in the third degree (two counts), attempted criminal sale of a controlled substance inthe third degree, criminal possession of a controlled substance in the third degree and criminalpossession of a controlled substance in the fifth degree, without a hearing.
Defendant was charged in a five-count indictment with crimes arising from his sale andattempted sale of cocaine to two confidential informants on three dates in May 2003. Followinga jury trial, he was convicted as charged and sentenced to an aggregate prison term of 17 to 34years.[FN1]This Court affirmed the judgment on direct appeal (People v Hoffler, 41 AD3d 891 [2007], lv denied 9 [*2]NY3d 962 [2007]). Defendant, proceeding pro se, then moved tovacate the judgment of conviction pursuant to CPL 440.10, alleging, among other things, that hehad been deprived of the effective assistance of counsel. County Court denied the motionwithout a hearing and defendant now appeals by permission of this Court.[FN2]
Initially, we agree with defendant's contention that County Court erred in denying his motionpursuant to CPL 440.10 (2) (c) on the ground that he had not demonstrated justification forfailing to raise the issues on direct appeal. A court is required to summarily deny a motion tovacate a judgment where, "[a]lthough sufficient facts appear on the record of the proceedingsunderlying the judgment to have permitted, upon appeal from such judgment, adequate review ofthe ground or issue raised upon the motion, no such appellate review or determination occurredowing to the defendant's . . . unjustifiable failure to raise such ground or issue uponan appeal actually perfected by him" (CPL 440.10 [2] [c]; see People v Polanco, 52 AD3d 947 [2008], lv denied 11NY3d 793 [2008]; People vNicholson, 50 AD3d 1397, 1399 [2008], lv denied 11 NY3d 834 [2008]). Here,while most of defendant's allegations of ineffective assistance of counsel are based on matters inthe record and could have been resolved—but were not raised—on direct appeal (41AD3d at 891-892), defendant was represented on direct appeal by the same attorney he retainedto represent him during his trial. Under these circumstances, the court should not have denieddefendant's motion pursuant to CPL 440.10 (2) (c) because counsel's failure to raise his ownineffectiveness on direct appeal was not "unjustifiable" (CPL 440.10 [2] [c]; see People vHarris, 109 AD2d 351, 360 n 3, 364 [1985], lv denied 66 NY2d 919 [1985]; seealso People v Reynolds, 309 AD2d 976, 977 [2003]).
Turning to the merits, we first address defendant's assertion that counsel improperly advisedhim of the consequences of rejecting a plea offer made by the People. Defendant averred that,prior to trial, counsel advised him that the People were offering a sentence of 5½ to 11years in exchange for his guilty plea to the crime of criminal sale of a controlled substance in thethird degree. In response, defendant told counsel that he wanted to raise the defense ofentrapment and felt that 5½ to 11 years was too long. According to defendant, counselreplied that the People were offering the plea deal because they felt that their case was "veryweak" as a result of the unavailability of Christopher Drabik, one of the confidentialinformants.[FN3]Counsel allegedly advised defendant that, if he went to trial, he would be facing "about 20 years"and told defendant that 20 years "would be tops you would get" and that "they can't give youanymore [sic] time on [*3]the B-felony." According todefendant, counsel also told him that, if he were convicted, County Court would run the countsconcurrently and not consecutively. Based upon this information, defendant told counsel to rejectthe plea offer because he felt that he was better off standing trial. Defendant asserted that, but forthis erroneous advice, he would have accepted it.
A court may deny a CPL 440.10 motion without a hearing where "[a]n allegation of factessential to support the motion . . . is made solely by the defendant and isunsupported by any other affidavit or evidence" and, under all of the circumstances of the case,"there is no reasonable possibility that such allegation is true" (CPL 440.30 [4] [d]; see People v Dawkins, 23 AD3d831, 832-833 [2005], lv denied 6 NY3d 811 [2006]). Defendant's affidavit isself-serving and has no support in the record or materials submitted on the motion.[FN4]Moreover, defendant's own statements that he felt that he had a defense to the charges and that asentence of 5½ to 11 years was too lengthy cut against his claim that, but for counsel'salleged erroneous advice, he would have accepted the People's alleged plea offer. Considering allof the circumstances, including that defendant's motion was decided by a judge who, havingpresided over defendant's trial, was familiar with the facts (see People v Ellis, 53 AD3d 776, 777 [2008]), we cannot concludethat County Court abused its discretion in denying the motion without a hearing (seeCPL 440.30 [4] [d]; People vFernandez, 5 NY3d 813, 814 [2005]; People v Smiley, 67 AD3d 713, 714 [2009], lv denied 13NY3d 942 [2010]; People vKennedy, 46 AD3d 1099, 1101 [2007], lv denied 10 NY3d 841 [2008]; People v Woodard, 23 AD3d 771,772 [2005], lv denied 6 NY3d 782 [2006]; compare People v Hampton, 64 AD3d 872, 876-877 [2009], lvdenied 13 NY3d 796 [2009]).
Nor was a hearing necessary to resolve the remainder of defendant's claims because theycould be resolved upon the trial record and the material submitted in support of the motion(see CPL 440.30 [1], [4] [d]; People v Satterfield, 66 NY2d 796, 799 [1985]; People v Robetoy, 48 AD3d 881,883 [2008]). Defendant asserted that counsel was ineffective for failing to move to suppress apolice officer's in-court identification of him, arguing that the evidence adduced attrial—and at his subsequent murder trial[FN5]—established that the traffic stop, upon which the in-court identification was based, wasillegal because defendant did not commit a traffic violation. However, the trial record andmaterial submitted by defendant established that the traffic stop was, in fact, based upon theofficer's "reasonable suspicion" that defendant had committed a felony (People v DeBour, 40 NY2d 210, 223 [1976]; see People v McNair, 36 AD3d 1073, 1074-1075 [2007], lvdenied 9 NY3d 847 [2007]). As there is no colorable basis for suppression [*4]of the fruits of the traffic stop, defendant's claim of ineffectiveassistance of counsel on this basis must fail (see People v Perea, 27 AD3d 960, 961 [2006]), and a hearing tofurther inquire into counsel's reasons for failing to make a motion to suppress was unnecessary(see People v Satterfield, 66 NY2d at 799-800).
Defendant also claimed that his counsel was ineffective for failing to request a hearing todetermine whether Drabik's unavailability was procured by him before Drabik's out-of-courtstatements could be admitted as direct evidence against him, and for failing to challenge, ashearsay, the admission of Drabik's out-of-court statements to police officers. It is clear from boththe record and our prior decision on direct appeal (41 AD3d at 893) that these claims are withoutmerit, and no hearing was necessary to resolve them (see People v Robetoy, 48 AD3d at883). Finally, we conclude that defendant's assertion that counsel was ineffective for failing toproperly preserve for appellate review a claim that the evidence was legally insufficient is beliedby the record. Thus, County Court properly denied this claim without a hearing (see CPL440.30 [4] [d]).
Defendant's remaining contentions have been fully reviewed and found to be unavailing.
Rose, Stein, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed.
Footnote 1: Defendant's sentences for twocounts of criminal sale of a controlled substance in the third degree were to run concurrentlywith each other. His sentences for the remaining three counts, which charged attempted sale andpossession, were to run concurrently with each other but consecutively to his convictions forcriminal sale of a controlled substance in the third degree.
Footnote 2: As defendant's brief addressesonly County Court's denial of his CPL 440.10 motion as to his ineffective assistance of counselclaims, defendant has abandoned the other claims of trial error set out in his CPL 440.10 motion(see People v Brodus, 307 AD2d 643, 644 n [2003], lv denied 100 NY2d 618[2003]).
Footnote 3: Drabik was murdered shortlybefore defendant's trial on the drug charges (41 AD3d at 892). In a separate indictment,defendant was charged with murdering Drabik and, after a jury trial, was convicted of the crimeof murder in the first degree (People vHoffler, 53 AD3d 116, 116-118 [2008], lv denied 11 NY3d 832 [2008]). Onappeal from that conviction, this Court reversed and remitted the matter for a new trial(id. at 124).
Footnote 4: We reject defendant's assertionthat his motion should have been summarily granted because the People did not respond to it,rendering his allegations unrefuted (see CPL 440.30 [1]; see also People vVasquez, 287 AD2d 334, 334-335 [2001], lv denied 97 NY2d 709 [2002]).
Footnote 5: We note that, in support of itsfinding that defendant's motion was based upon facts that appeared in the record, County Courterroneously observed that defendant had appended portions of the trial transcript to his motion.In fact, the pages of trial transcript that defendant attached to his motion were from the transcriptof his separate murder trial, not the underlying drug trial.