| People v Vallee |
| 2012 NY Slip Op 05669 [97 AD3d 972] |
| July 19, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Anthony P.Vallee, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel), forrespondent.
Spain, J. Appeals (1) from a judgment of the County Court of Clinton County (McGill, J.),rendered May 24, 2010, convicting defendant upon his plea of guilty of the crime of robbery inthe second degree, criminal possession of a weapon in the third degree, petit larceny and criminalpossession of stolen property in the fifth degree, and (2) by permission, from an order of saidcourt, entered September 22, 2011, which denied defendant's motion pursuant to CPL 440.10 tovacate the judgment of conviction, without a hearing.
Defendant waived indictment and was charged in a superior court information with onecount each of robbery in the second degree, criminal possession of a weapon in the third degree,petit larceny and criminal possession of stolen property in the fifth degree. These chargesstemmed from an incident whereby defendant and an accomplice robbed a store of over $700after threatening the sales clerks with a realistic-looking pellet gun. At defendant's initialappearances, the People put on the record a plea offer of an aggregate of "[10] years in stateprison with three years post-release supervision." During the plea allocution, County Courtagreed not to impose any sentence "greater than that which is being offered by the [D]istrict[A]ttorney which is [10] years determinat[e] and three years post-release supervision." Defendantthan pleaded guilty to all counts, after which the court reiterated to defendant its [*2]commitment that it would "not sentence [him] to more than [10]years and it may be less." At sentencing, the People again requested a sentence of 10 years inprison with three years of postrelease supervision. The court imposed a lesser sentence of eightyears with five years of postrelease supervision. Defense counsel then requested a conferenceindicating that she thought that the court had previously promised a maximum sentence of sevenyears and requested that the court "check the record." After the court checked its notes, whichconfirmed the original plea offer and that seven years had never been the offer, defendant wassentenced as an admitted second felony offender to, among other things, an aggregate sentence ofeight years in prison, followed by five years of postrelease supervision. Defendant now appealsfrom the judgment of conviction and, by permission, from the denial of his subsequent CPL440.10 motion claiming that he was denied the effective assistance of counsel.
Initially, addressing defendant's direct appeal, we conclude that defendant has not presentedgrounds for reversal. Significantly, "[n]othing in the record at the time of the plea discloses thathis plea was unknowing or involuntary, or that it was rendered so due to counsel's representation"(People v Deyo, 82 AD3d1503, 1504 [2011], lv denied 17 NY3d 815 [2011]). Here, defense counselnegotiated a favorable plea agreement, and the record confirms that County Court's unambiguouspromise of a sentence no greater than 10 years was put on the record—in the presence ofdefendant and his counsel—prior to his plea of guilty. Moreover, while defendant stated atsentencing that he would not have pleaded guilty had he "known" his potential sentence couldexceed seven years, the court had unequivocally informed him on the record at the time of theplea of his sentencing exposure, and he specifically represented to the court at sentencing that hedid not want to withdraw his plea. Any confusion or misapprehension regarding defendant's totalprison exposure was belied by the record and promptly addressed by the court (see People vBanks, 305 AD2d 812, 812 [2003], lv denied 100 NY2d 578 [2003]). Inasmuch asdefendant's plea allocution demonstrates "his full comprehension of the terms of his guilty plea"(People v Jenks, 69 AD3d1120, 1121 [2010], lv denied 14 NY3d 841 [2010]), the judgment of convictionmust be affirmed.
Turning to the denial of defendant's CPL 440.10 motion, which was supported solely bydefendant's affidavit, we are similarly unpersuaded that reversal is required. To the extent thatdefendant's claim that his plea was not voluntary due to ineffective assistance of counsel is basedupon information in the record and, thus, addressed on his direct appeal, it was not the propersubject of a CPL 440.10 motion (see CPL 440.10 [2] [b]; People v Pecararo, 83 AD3d 1284,1287 [2011], lv denied 17 NY3d 820 [2011]; People v Lahon, 17 AD3d 778, 780 [2005], lv denied 5NY3d 790 [2005]). Moreover, denial of defendant's motion without a hearing was also justifiablegiven that an allegation of fact essential to support the motion was made solely by defendant and"is unsupported by any other affidavit or evidence" and, under these circumstances, "there is noreasonable possibility that such allegation is true" (CPL 440.30 [4] [d]; see People v Hoffler, 74 AD3d1632, 1634-1635 [2010], lv denied 17 NY3d 859 [2011]).
Rose, J.P., Malone Jr., Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment andorder are affirmed.