| People v Ryder |
| 2016 NY Slip Op 01008 [136 AD3d 1109] |
| February 11, 2016 |
| Appellate Division, Third Department |
| As corrected through Wednesday, March 23, 2016 |
[*1]| The People of the State of New York, Respondent, vJoseph Ryder, Appellant. |
Sandra M. Colatosti, Albany, for appellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Garry, J. Appeal, by permission, from an order of the Supreme Court (Breslin, J.),entered January 10, 2014 in Albany County, which denied defendant's motion pursuantto CPL 440.10 to vacate the judgment convicting him of the crime of criminal possessionof a controlled substance in the third degree, without a hearing.
Defendant pleaded guilty to criminal possession of a controlled substance in the thirddegree and was sentenced, as a second felony offender, to 31/2 years inprison, to be followed by three years of postrelease supervision. Defendant movedpursuant to CPL article 440 seeking to vacate the judgment of conviction on the groundsthat, among other things, it was procured by duress, misrepresentation or fraud and thathe did not receive the effective assistance of counsel. Supreme Court denied the motionwithout a hearing and defendant, with permission of this Court, now appeals.
We affirm. Defendant contends that he pleaded guilty based upon amisrepresentation by counsel that he would be pleading to a class C or D felony andentered into a shock incarceration program rather than sentenced to prison time.Defendant also alleges that he would not have pleaded guilty if counsel had informedhim that he would not be sentenced until his codefendant's case was resolved.Defendant's claims are contradicted by the record, as the plea colloquy reflects that theterms of the plea agreement—which included him pleading guilty to a class Bfelony with a promise of a sentence of between 3 and 41/2 years in prison,followed by three years of postrelease supervision, contingent on his cooperation in theprosecution of his [*2]codefendant—were clearlyexplained to defendant prior to his plea and he affirmed his understanding of the terms.Further, during the colloquy, Supreme Court discussed the fact that defendant would notbe sentenced until there was a resolution in the codefendant's case, as defendant'ssentence was premised on his cooperation in that matter. Defendant's contention that hedid not understand the plea proceedings because he had stopped taking medication for amental illness is also belied by the record. Defendant acknowledged that he was thinkingclearly at the time of his plea, and he made no statements during the colloquy that calledhis competency into question (see People v Keebler, 15 AD3d 724, 726 [2005], lvdenied 4 NY3d 854 [2005]). As defendant's contentions are not factually supported,Supreme Court properly denied the motion without a hearing (see People v LaPierre, 108AD3d 945, 947 [2013]; People v Sayles, 17 AD3d 924, 924-925 [2005], lvdenied 5 NY3d 794 [2005]).
Peters, P.J., Egan Jr., Rose and Clark, JJ., concur. Ordered that the order isaffirmed.
