| People v Currier |
| 2016 NY Slip Op 01880 [137 AD3d 1428] |
| March 17, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMichael Currier, Appellant. |
Theresa M. Suozzi, Saratoga Springs, for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Rose, J. Appeal, by permission, from an order of the County Court of WashingtonCounty (McKeighan, J.), entered January 9, 2015, which denied defendant's motionpursuant to CPL 440.10 to vacate the judgment convicting him of the crime of predatorysexual assault against a child, without a hearing.
In satisfaction of a six-count indictment, defendant pleaded guilty to predatory sexualassault against a child and waived his right to appeal. At sentencing, defendant moved towithdraw his plea. County Court denied the motion and sentenced defendant inaccordance with the negotiated plea agreement to a prison term of 10 years to life.Thereafter, defendant moved pursuant to CPL 440.10 to vacate the judgment on thegrounds that there is newly discovered evidence of false representations by the victim,the factual recitation prior to entering his plea negated an essential element of the chargeand he was denied the effective assistance of counsel. County Court denied the motionwithout a hearing and defendant, by permission, appeals.
We affirm. To the extent that defendant contends that the judgment of convictionmust be vacated because there is newly discovered evidence in the form of an affidavit ofthe victim's cousin indicating that the victim admitted to fabricating the accusationsagainst defendant, we note that defendant's plea of guilty foreclosed such relief, which isavailable only upon a verdict following a trial (see CPL 440.10 [1] [g]; People v Rivera, 117 AD3d1475, 1475 [2014], lv denied 23 NY3d 1024 [2014]; People v Lahon, 17 AD3d778, 780 [2005], lv denied 5 NY3d 790[*2][2005]; People v Sides, 242 AD2d 750, 751 [1997],lv denied 91 NY2d 836 [1997]). Defendant's challenge to the voluntariness of hisplea, his assertion that the plea colloquy negated an essential element of the crime and hischallenge to the severity of the sentence imposed all should have been raised on a directappeal and are not the proper subjects of a CPL 440.10 motion (see CPL 440.10[2] [c]; People v Lang, 127AD3d 1253, 1255 [2015]; People v Morin, 117 AD3d 1315, 1317 [2014], lvdenied 24 NY3d 1220 [2015]; People v Vallee, 97 AD3d 972, 974 [2012], lvdenied 20 NY3d 1104 [2013]).
We find no error in County Court's decision not to conduct a hearing on defendant'sCPL 440.10 motion. Significantly, the judge hearing the motion had presided over theprior proceedings and was fully familiar with all aspects of the case. The knowledge ofthe underlying proceedings, together with the written submissions received in connectionwith the motion, provided the court with a sufficient basis to decide the motion without ahearing (see People vRobetoy, 48 AD3d 881, 883 [2008]; People v Demetsenare, 14 AD3d 792, 793 [2005]). We alsoreject defendant's contention that he was denied meaningful representation because hiscounsel purportedly misinformed him regarding the length of the agreed-upon sentence,as the record reflects that defendant was fully aware of the sentence to be imposed at thecommencement of the plea proceeding and he clearly stated during the plea colloquy thathe was satisfied with defense counsel's representation. Under these circumstances, wefind that defendant received meaningful representation and that the motion to vacate thejudgment was properly denied (see People v Lagas, 111 AD3d 1026, 1027 [2013], lvdenied 22 NY3d 1200 [2014]; People v Pecararo, 83 AD3d 1284, 1287 [2011], lvdenied 17 NY3d 820 [2011]).
Peters, P.J., Garry, Devine and Clark, JJ., concur. Ordered that the order isaffirmed.