| People v Morin |
| 2014 NY Slip Op 03876 [117 AD3d 1315] |
| May 29, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDavid Morin, Also Known as DWM Kitchens, Appellant. |
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Lahtinen, J. Appeals (1) from a judgment of the County Court of Albany County(Herrick, J.), rendered April 21, 2011, convicting defendant upon his plea of guilty of thecrime of grand larceny in the third degree (two counts), and (2) by permission, from anorder of said court, entered September 10, 2013, which denied defendant's motionpursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Defendant was charged in a 23-count indictment with defrauding numerousindividuals who paid him to acquire and install kitchen cabinets. He pleaded guilty inAlbany County to two counts of grand larceny in the third degree in satisfaction of theindictment, and waived his right to appeal. The plea agreement contemplated thatdefendant would be sentenced to an aggregate prison term of 3
Dealing first with defendant's direct appeal, "[n]othing in the record at the time of theplea discloses that [defendant's] plea was unknowing or involuntary, or that it wasrendered so due to counsel's representation" (People v Deyo, 82 AD3d 1503, 1504 [2011], lvdenied 17 NY3d 815 [2011]; accord People v Vallee, 97 AD3d 972, 973 [2012], lvdenied 20 NY3d 1104 [2013]). Defense counsel negotiated a favorable pleaagreement, the terms of which were clearly stated to defendant, and defendant indicatedthat he understood those terms and had discussed them with counsel to his satisfaction.Defendant then engaged in a detailed plea colloquy with County Court wherein heexpressed his understanding of the rights he was giving up by pleading guilty and statedthat he had not been pressured to do so. He further admitted, in detail, that he hadcommitted the crimes to which he was pleading guilty. Contrary to his contentions, therecord also demonstrates that he was thinking clearly when he elected to plead guilty andthat he was knowingly forfeiting his right to obtain decisions on his pretrial motions bydoing so. We are accordingly satisfied that defendant entered a knowing, voluntary andintelligent guilty plea (seePeople v Nascimento, 47 AD3d 1076, 1076 [2008]; People vWhitehurst, 291 AD2d 83, 86 [2002], lv denied 98 NY2d 642 [2002]). Wefurther find defendant's appeal waiver to be a valid one and, given that he was aware ofthe consequences of violating the plea agreement and had admittedly done so, saidwaiver precludes us from reviewing his challenge to the enhanced sentence (see People v Crowder, 110AD3d 1384, 1386 [2013], lv granted 22 NY3d 1155 [2014]).
Defendant's claim that his plea was not voluntary due to the ineffective assistance ofcounsel, to the extent that it relied upon information in the record, was "not the propersubject of a CPL 440.10 motion" (People v Vallee, 97 AD3d at 974; seeCPL 440.10 [2] [b]). As for matters outside of the record, defendant declined anopportunity for a hearing to determine whether he violated the plea agreement andadmitted that he had done so in order to avoid additional prison time on a variety ofpending charges against him. Accordingly, defense counsel's purported failure to placeadditional facts before County Court at the time of sentencing would not have altered thesentence imposed (see CPL 440.30; People v Griffin, 89 AD3d 1235, 1237-1238 [2011]). Wehave reviewed the remaining claims in defendant's motion and, suffice it to say, perceiveno abuse of discretion in the denial of it by County Court without a hearing.
Peters, P.J., Garry and Rose, JJ., concur. Ordered that the judgment and order areaffirmed.