| People v Smith |
| 2011 NY Slip Op 08844 [90 AD3d 1148] |
| December 8, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Anthony J.Smith, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), forrespondent.
Egan Jr., J. Appeals (1) from a judgment of the County Court of Washington County(McKeighan, J.), rendered January 16, 2009, convicting defendant upon his plea of guilty of thecrime of rape in the second degree, and (2) by permission, from an order of said court, enteredJuly 28, 2010, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgmentof conviction, without a hearing.
In satisfaction of a five-count indictment, defendant pleaded guilty to the crime of rape in thesecond degree, waived his right to appeal and thereafter was sentenced to the agreed-upon termof six months in jail followed by 10 years of probation. Defendant now appeals from thejudgment of conviction, as well as from County Court's subsequent order denying his pro se CPLarticle 440 motion.
We affirm. Defendant initially contends that his conviction must be reversed due to CountyCourt's failure to render a decision regarding his pro se motion to dismiss the indictment for legalinsufficiency. The record reveals, and defendant does not dispute, that defendant pleaded guiltyto the underlying crime shortly after he filed the subject motion—without awaiting CountyCourt's determination thereof—and, in conjunction therewith, voluntarily executed awritten waiver of the right to appeal wherein he expressly forfeited his right to challenge, among[*2]other things, the sufficiency of the indictment and the proofpresented to the grand jury. Accordingly, we conclude that defendant's present challenge isprecluded by his valid waiver of the right to appeal (see People v Buckler, 80 AD3d 889, 890 [2011], lv denied17 NY3d 804 [2011]; People vStokely, 49 AD3d 966, 968 [2008]), as well as his subsequent guilty plea (see People v Cintron, 62 AD3d1157, 1158 [2009], lv denied 13 NY3d 742 [2009]; People v Melendez, 48 AD3d 960,960 [2008], lv denied 10 NY3d 962 [2008]; cf. People v Morton, 84 AD3d 1507, 1507 [2011]; People v Atwood, 9 AD3d 512,513 [2004]).
Defendant's claim that County Court erred in denying his CPL article 440 motion without ahearing is equally unpersuasive, as the sole basis for the motion was defendant's vague andconclusory assertion that the then 13-year-old victim had recanted her earlier statement.Noticeably absent from the record is any evidence that the alleged recantation actuallyexisted—much less that the People had knowledge of and thereafter improperly withheld itfrom defendant. Under these circumstances, we cannot say that County Court erred in denyingdefendant's motion without a hearing (see People v Chaffee, 30 AD3d 763, 765 [2006], lv denied7 NY3d 846 [2006]).
Spain, J.P., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the judgment and order areaffirmed.