| People v Abuhamra |
| 2013 NY Slip Op 04921 [107 AD3d 1630] |
| June 28, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v HaniAbuhamra, Appellant. (Appeal No. 1.) |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.),rendered July 13, 2010. The judgment convicted defendant, upon a jury verdict, ofassault in the second degree (two counts), unlawful imprisonment in the second degreeand criminal contempt in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by directing that the definite sentence imposed on count four of the indictmentshall run concurrently with the determinate sentences imposed on the remaining countsof the indictment and as modified the judgment is affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himfollowing a jury trial of, inter alia, two counts of assault in the second degree (Penal Law§ 120.05 [1], [2]) and one count of criminal contempt in the first degree (§215.51 [b] [iv]). In appeal No. 2, defendant appeals from an order denying his motionseeking to vacate the judgment of conviction pursuant to CPL 440.10 on the ground thathe was denied effective assistance of counsel. As a preliminary matter, we conclude thatCounty Court properly denied defendant's CPL 440.10 motion without a hearinginasmuch as "trial counsel, the only person who could have provided any materialinformation not already before the motion court, was deceased" (People v Cotto,259 AD2d 288, 289 [1999], lv denied 93 NY2d 1002 [1999]). We also note thatdefendant failed to support the motion with his own sworn allegations (see CPL440.30 [1] [a]), but instead submitted an unsworn "affirmation." Nevertheless, becausethe court did not make a finding adverse to defendant on that ground, we decline to use itas a basis for affirming the order in appeal No. 2 (see People v Santana, 101 AD3d 1664, 1664 [2012], lvdenied 20 NY3d 1103 [2013]; see generally People v Concepcion, 17 NY3d 192, 194-196[2011]).
We reject the contention of defendant, raised in each appeal, that he was deniedeffective assistance of trial counsel. We agree with the court's determination on the CPL440.10 motion that defendant's allegation that he withdrew his plea solely on the groundthat his attorney advised him that he would never be convicted at trial or, if convicted,that he would not receive a state prison sentence, is contradicted by the record (seeCPL 440.30 [4] [d] [i]). We also agree [*2]with thecourt's determination that there is no reasonable possibility that the allegation is true(see CPL 440.30 [4] [d] [ii]). With respect to each of the remaining allegedinstances of ineffective assistance, we conclude that defendant failed to establish the lackof a strategic basis for any of the alleged deficiencies (see generally People vRivera, 71 NY2d 705, 709 [1988]). We therefore conclude that the recordestablishes that defendant received meaningful representation from trial counsel (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]).Defendant failed to preserve for our review his contention in appeal No. 1 that thePeople did not promptly disclose certain documents, which he contends constituteBrady material (see generally CPL 470.05 [2]). In any event, defendant'scontention is without merit inasmuch as the information was turned over asRosario material prior to jury selection and thus defendant had ample time to usethe information (see People vGonzalez, 89 AD3d 1443, 1444 [2011], lv denied 19 NY3d 973 [2012],reconsideration denied 20 NY3d 932 [2012]).
We reject defendant's contention in appeal No. 1 that the sentence is unduly harshand severe. We nevertheless conclude that the sentence is illegal insofar as the courtdirected that the definite sentence imposed on count four of the indictment shall runconsecutively to the determinate sentences imposed on counts one and two (seePenal Law § 70.35; People v Still, 26 AD3d 816, 817 [2006], lv denied6 NY3d 853 [2006]). Inasmuch as we cannot permit an illegal sentence to stand (see People v Stubbs, 96 AD3d1448, 1450 [2012], lv denied 19 NY3d 1001 [2012]), we modify thejudgment in appeal No. 1 accordingly (see Still, 26 AD3d at 817). Finally, wenote that the certificate of conviction erroneously states that defendant is obligated to payrestitution in the amount of $1,268.81, rather than $1,261.87, and therefore it must beamended to correct the clerical error (see generally People v Saxton, 32 AD3d 1286, 1286-1287[2006]). Present—Scudder, P.J., Peradotto, Lindley and Sconiers, JJ.