| People v LaPierre |
| 2013 NY Slip Op 05340 [108 AD3d 945] |
| July 18, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JasonJ. Lapierre, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler ofcounsel), for respondent.
Garry, J. Appeal, by permission, from an order of the County Court of SaratogaCounty (Scarano, J.), entered August 28, 2012, which denied defendant's motionpursuant to CPL 440.10 to vacate the judgment convicting him of the crime of grandlarceny in the second degree, without a hearing.
In May 2011, defendant waived prosecution by indictment and pleaded guiltypursuant to a superior court information to grand larceny in the second degree. Duringthe plea colloquy, defendant admitted that he had stolen more than $400,000 from hisemployer, a credit union, between 2006 and 2010. In accord with the plea agreement,County Court sentenced defendant to a prison term of 3 to 9 years and recommended thathe should be allowed to participate in a shock incarceration program. In April 2012,defendant moved pursuant to CPL article 440 to vacate the judgment of conviction,alleging that his trial counsel coerced him to plead guilty and provided him withineffective assistance. County Court denied the motion. Defendant appeals bypermission.
Defendant contends that County Court erred in denying his motion without ahearing. However, no hearing is required when a motion pursuant to CPL 440.10 can beresolved based upon the motion submissions and the record (see People v Jackson, 48AD3d 891, 893 [2008], lv [*2]denied 10NY3d 841 [2008]; People v Murray, 300 AD2d 819, 821 [2002], lvdenied 99 NY2d 617 [2003]). To demonstrate the existence of questions of factrequiring a hearing, defendant was obliged to show "that the nonrecord facts sought to beestablished are material and would entitle him to relief" (People v Satterfield, 66NY2d 796, 799 [1985]; accordPeople v Bethune, 80 AD3d 1075, 1076 [2011], lv denied 17 NY3d 792[2011]). We agree with County Court that defendant failed to make this showing.
Defendant submits a newspaper article published following his arraignment, inwhich trial counsel told reporters that defendant admitted taking a much smaller sumthan the full amount charged. Defendant's claim that counsel acted against hisinstructions is unsupported, as are his claims that trial counsel whispered misinformationto him during the plea colloquy and directed him to lie to County Court aboutmedication. Trial counsel refuted these claims by affidavit, and asserted that defendantinstructed him to make the statement to the press. The plea transcript reveals that CountyCourt specifically questioned defendant as to his understanding of the terms of the pleaagreement. When defendant responded to the court's inquiry that he was takingmedication, he also clearly stated that he "under[stood] what's going on." The courtinquired further, but defendant denied any difficulty in understanding. As defendant'sclaims were not factually supported, no need for a hearing was established (see People v Trombley, 91AD3d 1197, 1203 [2012], lv denied 21 NY3d 914 [2013]; People v Reynoso, 88 AD3d1162, 1163 [2011]).
Next, defendant claims that he entered his guilty plea based upon trial counsel'simproper representation that his participation in a shock incarceration program wasguaranteed and that his actual incarceration would be brief. This claim is contradicted bythe record, as the plea transcript reflects no ambiguity as to defendant's sentence (see People v Griffin, 89 AD3d1235, 1237 [2011]). Trial counsel advised County Court, in defendant's presence,that the plea agreement included a "recommendation" for shock incarceration. The courtthen told defendant that it would sentence him to 3 to 9 years in prison and "recommend"his participation in the shock incarceration program. Defendant—a collegegraduate—confirmed unequivocally that he understood. Contrary to defendant'scontention, the correspondence from his trial counsel following the plea does notdemonstrate that there was any misrepresentation or misunderstanding; the letter insteadaccurately describes the agreed-upon sentence, including the shock incarcerationrecommendation. Finally, defendant contends that he had insufficient time to considerthe ramifications of pleading guilty, as his trial counsel did not inform him of theproposed plea bargain until defendant arrived at court for the appearance. These claimsare also belied by the record, as nothing in the plea transcript suggests that defendantmay have been surprised by the proposed plea agreement, confused about its terms ordissatisfied with his counsel's performance. On the contrary, he responded affirmativelyand without equivocation to all of the court's questions about his understanding of theagreement, his rights, and the voluntariness of his decision to enter the plea. Thus, wecannot conclude that the court erred in denying the motion without a hearing (seeCPL 440.30 [4] [d]; People vSayles, 17 AD3d 924, 924-925 [2005], lv denied 5 NY3d 794 [2005];People v Hickey, 277 AD2d 511, 511 [2000], lv denied 95 NY2d 964[2000]).
Peters, P.J., Lahtinen and McCarthy, JJ., concur. Ordered that the order is affirmed.