| People v Lagas |
| 2013 NY Slip Op 07523 [111 AD3d 1026] |
| November 14, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DavidW. Lagas, Also Known as Beaver, Appellant. |
—[*1] Michael A. Cozzolino, Special Prosecutor, Claverack, for respondent.
Rose, J.P. Appeal, by permission, from an order of the County Court of ColumbiaCounty (Koweek, J.), entered July 3, 2013, which denied defendant's motion pursuant toCPL 440.10 to vacate the judgment convicting him of the crimes of burglary in thesecond degree, petit larceny, criminal mischief in the fourth degree (two counts) andburglary in the third degree, without a hearing.
In return for a joint recommendation that he be sentenced to an aggregate prison termof 10 years to be followed by five years of postrelease supervision, defendant pleadedguilty to a five-count indictment and waived his right to appeal. County Court ultimatelyimposed a total prison sentence of 9½ years, to be followed by five years ofpostrelease supervision. We affirmed the conviction upon direct appeal (76 AD3d 384[2010], lv denied 16 NY3d 741 [2011]). Defendant thereafter moved to vacatethe judgment pursuant to CPL 440.10, arguing that he did not receive the effectiveassistance of counsel. County Court denied the motion without a hearing. Defendant nowappeals by permission, arguing that his application was improperly denied without ahearing.
We disagree and affirm. Defendant contends that his first attorney was ineffective infailing to relay his acceptance of a preindictment plea offer made by the People.Defendant's self-serving claim that he accepted the offer in a timely fashion isunsupported by any other [*2]evidence. County Courtwas therefore entitled to reject the claim without a hearing (see CPL 440.30 [4][d]; People v Fernandez, 5NY3d 813, 814 [2005]; People v Lane, 83 AD3d 1118, 1118-1119 [2011], lvdenied 17 NY3d 818 [2011]).
Similarly unsupported by evidence in the record is the assertion that defense counselfailed to advise defendant that the sentence imposed in this matter would runconsecutively to a prison term he was already serving (see CPL 440.30 [4] [d]).That purported failure, in any event, would not constitute ineffective assistance givendefendant's full awareness that County Court had made no promises as to the ultimatesentence (see CPL 440.30 [4] [c]; People v Lopez, 8 AD3d 819, 820 [2004], lvdenied 3 NY3d 708 [2004]; see also People v Belliard, 20 NY3d 381, 388-389 [2013]).
Lahtinen, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed.