| People v Griffin |
| 2011 NY Slip Op 07878 [89 AD3d 1235] |
| November 10, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Gary A. Griffin,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Stein, J. Appeals (1) from a judgment of the County Court of Albany County (Breslin, J.),rendered April 22, 2010, convicting defendant upon his plea of guilty of the crime of grand larceny inthe fourth degree, and (2) by permission, from an order of said court, entered October 20, 2010, whichdenied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without ahearing.
Defendant was arrested and charged with one count of grand larceny in the fourth degree and threecounts of criminal possession of a forged instrument in the second degree. After waiving his right toindictment by a grand jury, defendant pleaded guilty to a single count of grand larceny in the fourthdegree. Defendant was thereafter sentenced to an agreed-upon term of 2 to 4 years in prison.
Prior to sentencing, defendant moved to withdraw his plea, asserting that his counsel wasineffective and that he was induced into pleading guilty by his mistaken belief that New [*2]York's persistent felony statute was valid[FN1]—when, in fact, between the date of defendant's plea and his sentencing, a federal appellatecourt held it to be unconstitutional (see Besser v Walsh, 601 F3d 163, 188 [2d Cir 2010],cert denied 562 US —, 131 S Ct 342 [2010]). Defendant also asserted that he wasinnocent and that he had lied under oath during the plea colloquy. County Court denied defendant'smotion and sentenced him in accordance with the plea agreement. Defendant thereafter moved pursuantto CPL 440.10 (1) (h) to vacate the judgment of conviction. County Court denied this motion without ahearing. Defendant now appeals from the judgment of conviction and, with permission, from the orderdenying his CPL article 440 motion.
We affirm. It is well settled that it is within the trial court's sound discretion whether to permit adefendant to withdraw a guilty plea, and no hearing is required unless a genuine question of fact as to itsvoluntariness is set forth on the record (seePeople v Strickland, 77 AD3d 1019, 1020 [2010]; People v Carmona, 66 AD3d 1240, 1241 [2009], lv denied 14NY3d 799 [2010]). Here, while the record reflects that at the first court appearance defendantexpressed difficulty contacting his attorney, the matter was adjourned for two weeks in order to afforddefendant the opportunity to speak with his attorney and with family members. The record of the pleacolloquy that took place following that adjournment reveals that defendant articulated to County Courtthat he fully understood the rights he was giving up, that he had "a full chance to consult with" hisattorney and that he was satisfied with the representation he received. He further admitted his guilt,allocuted to all of the elements and facts of the crime with which he was charged and stated that hisdecision to plead guilty was free and voluntary. Defendant's subsequent protestations of innocencewere unsubstantiated and County Court was within its discretion to disregard such statements indenying defendant's motion (see People vMitchell, 73 AD3d 1346, 1347 [2010], lv denied 15 NY3d 922 [2010]; Peoplev Davis, 250 AD2d 939, 940 [1998]).
Nor do we find merit to defendant's argument that his plea was the result of a mistake in theinducement. Notably, " '[a]bsent misrepresentation or other impermissible conduct by state agents, avoluntary plea of guilty intelligently made in the light of the then applicable law does not becomevulnerable because later judicial decisions indicate that the plea rested on a faulty premise' " (Peoplev Trank, 58 AD3d 1076, 1077 [2009], lv denied 12 NY3d 860 [2009], quotingBrady v United States, 397 US 742, 757 [1970]). Moreover, the law in New York asestablished by the Court of Appeals, to which this Court is bound, has continually upheld theconstitutionality of the persistent felony offender sentencing scheme (see People v Quinones, 12 NY3d 116,122-131 [2009], cert denied 558 US —, 130 S Ct 104 [2009]; People v Battease, 74 AD3d 1571,1577 [2010], lv denied 15 NY3d 849 [2010]).[FN2]Inasmuch as nothing in the record suggests any misleading conduct by state agents or calls into questiondefendant's guilt or the voluntariness of his plea, we conclude that County Court did not abuse itsdiscretion in denying defendant's motion to withdraw such plea without a hearing (see People v Seeber, 4 NY3d 780,[*3]781 [2005]; People v Carmona, 66 AD3d at 1241; People v First, 62 AD3d 1043, 1044[2009], lv denied 12 NY3d 915 [2009]; People v Singletary, 51 AD3d 1334, 1334 [2008], lv denied 11NY3d 741 [2008]).
We likewise find no error in County Court's denial of defendant's CPL article 440 motion to vacatethe judgment of conviction without conducting a hearing as to the effectiveness of his counsel.Defendant argues that his counsel was ineffective for, among other things, misrepresenting to him thatCounty Court had promised not to sentence him as a persistent felony offender if he entered a guiltyplea. Significantly, the record reveals that there was no ambiguity relating to the sentence that defendantwould receive in the event he accepted the plea agreement, and defendant was not sentenced as apersistent felony offender. Moreover, defendant failed to demonstrate that "the nonrecord facts soughtto be established are material and would entitle him to relief" (People v Satterfield, 66 NY2d796, 799 [1985]). Additionally, defendant's counsel secured a very favorable plea bargain inasmuch asdefendant pleaded guilty to only one charge in satisfaction of a four-count indictment and avoidedexposure to harsher sentencing as a persistent felony offender. Finally, nothing in the record otherwisecasts doubt on counsel's effectiveness. Under these circumstances, defendant was afforded meaningfulrepresentation (see People v Ford, 86 NY2d 397, 404 [1995]; People v Shurock, 83 AD3d 1342,1343 [2011]; People v Singletary, 51 AD3d at 1335), and County Court properly denied themotion based on written submissions (see CPL 440.30; People v Satterfield, 66NY2d at 799; People v Morehouse, 5AD3d 925, 926 [2004], lv denied 3 NY3d 644 [2004]).
Defendant's remaining contentions, to the extent not specifically addressed, have been examinedand found to be lacking in merit.
Mercure, J.P., Peters, Garry and Egan Jr., JJ., concur. Ordered that the judgment and order areaffirmed.
Footnote 1: At the time that defendant enteredhis plea, he would have been subject to sentencing as a persistent felony offender.
Footnote 2: We also note that the ruling inBesser v Walsh (supra) was subsequently vacated following rehearing en banc (seePortalatin v Graham, 624 F3d 69, 73 [2d Cir 2010], cert denied 562 US —, 131S Ct 1693 [2011]), and is no longer the law in the Second Circuit.