| People v Muriel |
| 2010 NY Slip Op 06184 [75 AD3d 908] |
| July 22, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Edgar A.Muriel, Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Jodi A. Danzig of counsel), forrespondent.
Spain, J.P. Appeals (1) from a judgment of the County Court of Saratoga County (Scarano,J.), rendered July 10, 2007, which resentenced defendant upon his conviction of the crimes ofconspiracy in the second degree and criminal sale of a controlled substance in the second degree,and (2) by permission, from an order of said court, entered December 4, 2009, which denieddefendant's motion pursuant to CPL 440.20 to set aside the sentence, without a hearing.
Defendant, facing charges for 23 crimes, pleaded guilty to conspiracy in the second degreeand criminal sale of a controlled substance in the first degree in accordance with a detailed,written plea agreement. Pursuant to that agreement, if defendant cooperated with the People intheir prosecution of his codefendants, the conspiracy conviction would stand but defendantwould be permitted to withdraw the plea to criminal sale of a controlled substance in the firstdegree and enter a plea of guilty to criminal sale of a controlled substance in the second degree.In connection with the replea, the agreement provided that the range of defendant's sentencewould be a minimum possible sentence of three years to life and a maximum possible sentenceof 8
As contemplated, defendant cooperated with the People,withdrew his plea to criminal sale of a controlled substance in the first degree and eventuallyreplaced it with a plea of criminal sale of a controlled substance in the second degree. He wassentenced on the conspiracy conviction to a prison term of 4 to 12 years and on the criminal saleconviction—upon application of the Drug Law Reform Act of 2005—to a prisonterm of seven years, with five years of postrelease supervision. The sentences were set to runconcurrently.
Defendant subsequently moved pursuant to CPL 440.20 to have his sentence set aside,arguing that he did not receive the full benefit of his plea bargain because the parties hadassumed that his maximum prison exposure would stem from the criminal sale conviction, ratherthan the conspiracy conviction. County Court denied defendant's motion without a hearing.Defendant—raising only challenges to his sentence on the conspiracyconviction—now appeals from his judgment of conviction and from the order denying hisCPL 440.20 motion.
Initially, although defendant waived his right to appeal, it is not clear that his waiverprecludes a challenge to the sentence imposed on the conspiracy conviction. Although thewritten plea agreement executed by defendant clearly contemplates the waiver of his right toappeal from both convictions, defendant also executed a written waiver of his right to appeal thatreferences only the criminal sale conviction. During the subsequent plea colloquy, County Courtadequately apprised defendant of the rights he was giving up by waiving his right to appeal, butdid not separately address the crimes to which he pleaded and, thus, did not dispel the confusioncreated by the disparity in the written documents. Under these circumstances, we cannot discernwhether defendant knowingly and intelligently relinquished his right to appeal from theconspiracy conviction and, therefore, we will address the merits of his appeal (see People v Lopez, 6 NY3d 248,256-257 [2006]; People vMiddleton, 72 AD3d 1336, 1337 [2010]; People v Moran, 69 AD3d 1055, 1056 [2010]; cf. People v Stokely, 49 AD3d966, 967 [2008]).
First, we reject defendant's assertion that he did not receive the full benefit of his pleabargain. Specifically, defendant contends that because during the plea negotiations the partiesassumed that defendant's maximum sentence would flow from the more serious criminal salecount, an implicit agreement arose that he would not be sentenced higher on the conspiracycount than on the criminal sale count. We find no evidence that a promise, express or implied,was made to defendant with regard to the sentence imposed upon his conspiracy conviction orthat any understanding was reached that defendant would serve no more than the seven-yeardeterminate sentence he ultimately obtained on the criminal sale conviction. Accordingly, wereject defendant's request that we reduce his sentence for conspiracy in the second degree basedon any failure by the People or County Court to abide by the plea agreement (see People v Cullen, 62 AD3d1155, 1157 [2009], lv denied 13 NY3d 795 [2009]; People v Long, 12 AD3d 788,788-789 [2004], lv denied 4 NY3d 833 [2005]).
Defendant also argues that the sentence County Court imposed upon his conviction ofconspiracy in the second degree is harsh and excessive. The sentence of 4 to 12 years is belowthe maximum and less than that recommended by the People (i.e., 5 to 15 years). Furthermore,the plea agreement specifically apprised defendant of a potential maximum aggregate prisonsentence of 8
We also reject defendant's contention that his counsel was ineffective for failing to gain amaximum sentence cap on the conspiracy conviction which was lower than that given on thecriminal sale conviction. A defendant's right to the effective assistance of counsel will besatisfied " 'so long as the evidence, the law, and the circumstances of a particular case, viewed intotality and as of the time of the representation, reveal that the attorney provided meaningfulrepresentation' " (People v Benevento, 91 NY2d 708, 712 [1998], quoting People vBaldi, 54 NY2d 137, 147 [1981]). Here, a review of the record reflects that counsel'srepresentation of defendant was meaningful. Indeed, defense counsel obtained an advantageousplea agreement for defendant, given the number and severity of the charges and defendant'spotential exposure to an extremely long sentence (see People v Riddick, 40 AD3d 1259, 1261 [2007], lvdenied 9 NY3d 925 [2007]; Peoplev Roberts, 38 AD3d 1014, 1015 [2007]; People v Lopez, 8 AD3d 819, 819 [2004], lv denied 3NY3d 708 [2004]).
Finally, we find no error in County Court's denial of defendant's CPL 440.20 motion withouta hearing. Where, as here, the record conclusively refutes the claim that a sentencing promisewas made in the context of a plea agreement but not kept, there is no entitlement to a hearing (see People v Brown, 23 AD3d702, 702-703 [2005], lv denied 6 NY3d 774 [2006]; People v Lopez, 8AD3d at 820).
Lahtinen, Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment and order areaffirmed.