| People v Witkop |
| 2014 NY Slip Op 01037 [114 AD3d 1242] |
| February 14, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Shawn B. Witkop, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court inthe Fourth Judicial Department, from an order of the Niagara County Court (Sara S.Sperrazza, J.), dated July 25, 2011. The order denied defendant's amended motionpursuant to CPL 440.10.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from an order summarily denying, inter alia, hisamended pro se motion pursuant to CPL 440.10 (hereafter, motion) to vacate thejudgment convicting him upon his guilty plea of burglary in the first degree (Penal Law§ 140.30 [2]) and manslaughter in the second degree (§ 125.15 [1]). Wereject defendant's contention that County Court abused its discretion in denying themotion without a hearing based on his allegations of ineffective assistance of counsel.Defendant asserted in his supporting affidavit that defense counsel's investigation of thecharges against him was inadequate inasmuch as defense counsel failed to discoverstatements by three alleged witnesses who "all stated that [defendant] was on thepremises to work," and who "saw defendant at work" on the victim's home. Evenassuming, arguendo, that those alleged witnesses could establish that defendant did notenter the victim's home unlawfully, we conclude that such entry would not negate thetrespass element of burglary inasmuch as the indictment charged only that defendant"remained unlawfully" in the home (see Penal Law § 140.30; see generally People vJackson, 48 AD3d 891, 892 [2008], lv denied 10 NY3d 841 [2008]).Defendant further asserted in his supporting affidavit that defense counsel "intimidated"him into pleading guilty during two off-the-record discussions at the plea proceeding.Defendant's unsupported, self-serving assertions, however, are contradicted by thetranscript of the plea proceeding, at which defendant indicated that he agreed to pleadguilty of his own free will and that no one had coerced him to enter the plea (seeCPL 440.30 [4] [d] [i]; People v Sayles, 17 AD3d 924, 924-925 [2005], lvdenied 5 NY3d 794 [2005]). We note, moreover, that defense counsel's allegedoff-the-record discussions with defendant occurred after defendant's above-describedstatements during the plea colloquy, and thus there is no reasonable possibility that anysuch intimidation affected defendant's decision to plead guilty (see CPL 440.30[4] [d] [ii]). The record likewise does not support defendant's assertion that defensecounsel was unprepared at sentencing. We conclude, therefore, that the court properlydenied defendant's motion without a hearing because, "given the nature of the claimedineffective assistance, the motion could be determined on the trial record and defendant'ssubmissions on the motion" (People v Satterfield, 66 NY2d 796, 799 [1985]; see People v Jamison, 71AD3d 1435, 1437 [2010], lv denied 14 NY3d 888 [2010]).
Defendant failed to address in his brief on appeal the remaining grounds advanced insupport of his motion, and we thus deem any contentions with respect thereto abandoned(see generally People vDombrowski, 87 AD3d 1267, 1267-1268 [2011]). Present—Scudder,P.J., Fahey, Peradotto, Carni and Valentino, JJ.