| People v Pecararo |
| 2011 NY Slip Op 03137 [83 AD3d 1284] |
| April 21, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Nicholas D.Pecararo, Appellant. |
—[*1] Kristy L. Sprague, District Attorney, Elizabethtown (Allison M. McGahay of counsel), forrespondent.
Spain, J. Appeal, by permission, from an order of the Supreme Court (Dawson, J.), enteredMay 21, 2007 in Essex County, which denied defendant's motion pursuant to CPL 440.10 and440.20 to vacate the judgment convicting him of the crime of murder in the second degree and toset aside the sentence, without a hearing.
In 1997, defendant was indicted on nine charges, including murder in the first degree, basedon the theory that he was hired by Jeffrey Glanda, the victim's husband, to help Glanda kill hiswife and make the death appear like an accidental drowning (see Penal Law §125.27 [1] [a]; see generally People vGlanda, 5 AD3d 945 [2004], lvs denied 3 NY3d 640, 674 [2004]). Thereafter,defendant pleaded guilty to murder in the second degree in satisfaction of all counts of theindictment. The plea agreement called for a sentence of imprisonment of no less than 20 years tolife and no greater than 25 years to life, conditioned upon defendant's fulfillment of his promiseto cooperate with the People in their prosecution of Glanda. Sentencing was adjourned until afterdefendant had fulfilled that promise. Defendant also agreed to waive his right to appeal.Thereafter, defendant testified at Glanda's trial and Glanda was convicted of first degree murder.In March 2000, consistent with the People's recommendation, defendant was sentenced to 20years to life, the minimum permitted under the plea agreement. In February 2007, defendantmoved to either vacate his guilty plea (see CPL 440.10) or to set aside his sentence(see CPL 440.20). Supreme Court denied the motion without a hearing. With thepermission of [*2]this Court, defendant appeals, and we nowaffirm.
Defendant contends that his motion to vacate the judgment of conviction and set aside hissentence under CPL 440.10 and 440.20 was improperly denied. Specifically, defendant assertsthat he was coerced into pleading guilty by defense counsel, the People, the police, and friendsand family, all of whom advised him to accept the plea offer in order to avoid a trial and thepossibility of a death sentence (see CPL 440.10 [1] [b]). However, it is well establishedthat it is not coercive for counsel to recommend that a defendant accept a plea agreement in orderto avoid facing a harsher sentence if convicted at trial (see People v Atkinson, 58 AD3d943, 943 [2009]; People v Coleman,8 AD3d 825, 826 [2004]). Further, a plea is not rendered involuntary because the defendantpleaded guilty in order to avoid exposure to the death penalty (see People v Page, 12 AD3d 622,623 [2004], lv denied 4 NY3d 801 [2005], cert denied 545 US 1132 [2005]; People v Bonton, 7 AD3d 634[2004], lv denied 3 NY3d 671 [2004]).
Also unavailing is defendant's reliance on other, unspecified instances of alleged misconductby the police—i.e., that he was instructed on how to testify by unnamed individuals andthat the police impermissibly transported him from his jail cell to the crime scene withoutfollowing the proper police protocols. Such allegations, even if proven, simply do not underminethe voluntariness of defendant's plea. In support of his coercion argument, defendant relies on thefact that, when being questioned by Supreme Court during his plea colloquy, he gave thenonresponsive answer "police misconduct" at one point. Inasmuch as this argument stems fromfacts apparent on the record, it would be reviewable on direct appeal and, therefore, is notproperly the subject of a CPL 440.10 motion (see CPL 440.10 [2] [c]; People v Lahon, 17 AD3d 778,780 [2005], lv denied 5 NY3d 790 [2005]). Significantly, in his affidavit, defendant doesnot explain this comment or link it to any evidence outside the record. Accordingly, we hold thatthe court's denial of defendant's motion without a hearing was not improvident (see People v Bunce, 45 AD3d 982,985 [2007], lv denied 10 NY3d 809 [2008]; People v Woodard, 23 AD3d 771, 772 [2005], lv denied 6NY3d 782 [2006]).
Defendant also contends that he was entitled to a hearing to determine whether his convictionshould be vacated based on ineffective assistance of counsel (see CPL 440.10 [1] [h]).The right to effective assistance of counsel will be met " 'so long as the evidence, the law, and thecircumstances of a particular case, viewed in totality and as of the time of the representation,reveal that the attorney provided meaningful representation' " (People v Muriel, 75 AD3d 908,911 [2010], lv denied, 15 NY3d 922 [2010], quoting People v Baldi, 54 NY2d137, 147 [1981]). Here, defendant relies on evidence obtained in the form of affidavits from theprosecutor and defendant's trial counsel—now deceased—indicating that the Peopleexpressed a willingness to consider, after defendant cooperated with Glanda's trial, a sentencelower than that contained in the plea agreement, but that defense counsel failed to pursue thatreduction at sentencing. However, nowhere in these submissions or, indeed, in defendant's ownaffidavit is it asserted that any actual sentence reduction promise was made. Pursuant to the pleaagreement that defense counsel negotiated, defendant avoided the possibility of conviction on theeight other counts in the indictment, including the top count of murder in the first degree, whichconviction could have resulted in the death penalty at the time of defendant's plea (see e.g.People v Muriel, 75 AD3d at 911). Following his cooperation with Glanda's prosecution,defendant received the lowest sentence allowable under the plea agreement. Further, the pleaagreement expressly states that no other promises would be made or agreed upon except inwriting, and defendant clearly stated during his plea allocution that he was satisfied with defensecounsel's representation. Under these circumstances, we find that defendant received meaningfulrepresentation and his motion to [*3]vacate his conviction wasproperly rejected without a hearing (see CPL 440.30; People v Mosby, 78 AD3d 1371, 1376 [2010]; People vMuriel, 75 AD3d at 911; People vLopez, 8 AD3d 819, 820 [2004], lv denied 3 NY3d 708 [2004]). The only otheralleged failure of trial counsel raised by defendant—that counsel did not file a notice ofappeal despite defendant's request that he do so—is not properly before us as the properrecourse under such circumstances is an application for a writ of error coram nobis (see People v Syville, 15 NY3d391, 400-401 [2010]).
Finally, we discern no abuse in Supreme Court's denial, without a hearing, of that part ofdefendant's motion which sought to set aside his sentence under CPL 440.20. Defendant relies onthe evidence, discussed previously, that the prosecutor might have considered a reduction in theagreed-upon sentence following defendant's cooperation in Glanda's trial. The allegation that theprosecutor expressed a willingness to consider a lesser sentence does not render the sentenceimposed either illegal or invalid as contemplated by CPL 440.20 (see CPL 440.20 [1]; People v Dawkins, 23 AD3d 831,833 [2005], lv denied 6 NY3d 811 [2006]).
Defendant's remaining contentions, which focus on his understanding of the plea and itsconsequences, are based on the record and not reviewable in the context of a CPL article 440motion (see CPL 440.10 [2] [c]; People v Lahon, 17 AD3d at 780).
Peters, J.P., Rose, Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed.