| People v Bethune |
| 2011 NY Slip Op 00443 [80 AD3d 1075] |
| January 27, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DwayneBethune, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Garry, J. Appeal, by permission, from an order of the County Court of Albany County(Breslin, J.), entered November 25, 2009, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment convicting him of the crimes of burglary in the third degree andcriminal possession of stolen property in the fifth degree, without a hearing.
After a bench trial, defendant was convicted of burglary in the third degree and criminalpossession of stolen property in the fourth degree in connection with the disappearance of alaptop computer from an office in a cement manufacturing facility in the Town of Coeymans,Albany County. County Court subsequently reduced the second conviction to criminal possessionof stolen property in the fifth degree, sentenced defendant to a conditional discharge on thisreduced conviction, and sentenced him as a second felony offender to a prison term of 3½to 7 years on the burglary conviction. The judgment was affirmed on direct appeal (People v Bethune, 65 AD3d 749[2009]). Defendant then moved pursuant to CPL 440.10 to vacate the judgment, and CountyCourt denied the motion without a hearing. Defendant appeals by permission (see CPL460.15).
In his CPL 440.10 motion, defendant contended, among other things, that he receivedineffective assistance at trial because his counsel failed to fully explore an alleged discrepancybetween the serial numbers of the computer that formed the basis of his convictions and the [*2]computer that disappeared from the cement plant office.[FN1]County Court denied the motion on the ground that this issue was or could have been raised ondirect appeal (see CPL 440.10 [2] [c]; People v Polanco, 52 AD3d 947 [2008], lv denied 11 NY3d793 [2008]). Defendant contends that a hearing should have been held because, as we previouslyfound in a different context upon his direct appeal, the serial number claim was based on factsoutside the record (65 AD3d at 751). However, a hearing is not always required on a motionpursuant to CPL 440.10; the statute directs the court to first review the written submissions.Upon this initial review, defendant was required to reveal "that the nonrecord facts sought to beestablished are material and would entitle him to relief" (People v Satterfield, 66 NY2d796, 799 [1985]; see CPL 440.30 [1], [2], [4]; People v Orcutt, 49 AD3d 1082, 1087-1088 [2008], lvdenied 10 NY3d 938 [2008]). We find that no such showing was made.
Even if defendant were to establish his claim that the computer he allegedly removed fromthe cement plant office did not bear the serial number referenced in one of the felony complaints,he was not prosecuted upon this basis, but upon the subsequent grand jury indictments(see CPL 100.10 [5]; 210.05). The burglary indictment did not refer to any computer, andthe indictment for criminal possession in the fourth degree referred to a stolen computer andcarrying case without mention of any identifying numbers. Most critically, County Courtultimately reduced defendant's criminal possession conviction to criminal possession in the fifthdegree; we previously found this conviction to be legally sufficient and not against the weight ofthe evidence based on, among other things, a video surveillance tape showing defendant carryinglaptop cases out of the cement plant office—without regard to whether the cases containedany computer at all (65 AD3d at 751-753). Accordingly, defendant failed to show that thenonrecord facts were material or would "create an issue as to the validity of the judgment"(People v Hoke, 276 AD2d 903, 905 [2000], lv denied 96 NY2d 801 [2001]), andthus failed to reveal the need for a hearing.
The submissions and trial record do not support defendant's claim that he received ineffectiveassistance. His counsel made certain limited inquiries about the serial numbers of severalcomputers discussed during the trial, and the record reveals sound reasons that could havesupported a reasonable strategic decision to avoid drawing attention to the computers by pursuingsuch inquiries further (see People v Satterfield, 66 NY2d at 799-800; People vEnglish, 246 AD2d 925, 925-926 [1998], lv denied 91 NY2d 972 [1998]).Specifically, counsel had successfully moved before trial to suppress the computer that defendantwas alleged to have removed from the office (65 AD3d at 751). There was trial testimony about acomputer that had previously disappeared from the cement facility and a computer that defendantallegedly had with [*3]him when he entered thefacility;[FN2]counsel objected to testimony about both computers as inadmissible evidence of defendant's priorbad acts (see e.g. People vChapman, 54 AD3d 507, 511 [2008]). Thus, defendant failed to "demonstrate theabsence of strategic or other legitimate explanations for counsel's allegedly deficient conduct"(People v Caban, 5 NY3d 143,152 [2005] [internal quotation marks and citation omitted]). County Court properly denieddefendant's CPL 440.10 motion (see People v Orcutt, 49 AD3d at 1087-1088).
Mercure, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is affirmed.
Footnote 1: Defendant's brief is limited tothe claim that he received ineffective assistance of counsel, thus abandoning the remaining errorsalleged in his CPL 440.10 motion (seePeople v Hoffler, 74 AD3d 1632, 1633 n 2 [2010]). To the extent that his supplementalpro se brief may be construed as challenging the legal sufficiency of his convictions, that claimwas previously raised and found without merit (65 AD3d at 752).
Footnote 2: Defendant alleges in theaffidavit supporting his CPL 440.10 motion that these two computers were one and the same andthat he bought the computer he had with him on the day of the crimes from a cement facilityemployee. His girlfriend testified at trial that he could not use the computer he had with himbecause he did not have the codes, and that he went to the cement facility on the day of thecrimes to get another one.