| People v Perry |
| 2017 NY Slip Op 02095 [148 AD3d 1423] |
| March 23, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Melvin H.Perry, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), forappellant, and appellant pro se.
Mary E. Rain, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.
Lynch, J. Appeals (1) from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered May 5, 2014, convicting defendant upon his plea of guilty of the crime ofburglary in the second degree, and (2) by permission, from an order of said court, entered August21, 2015, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment ofconviction, without a hearing.
Defendant pleaded guilty to burglary in the second degree and purportedly waived his right toappeal. County Court sentenced him to seven years in prison, to be followed by five years ofpostrelease supervision. Defendant thereafter moved, pursuant to CPL 440.10, to vacate thejudgment on the basis of ineffective assistance of counsel. County Court denied the motionwithout a hearing. Defendant now appeals from the judgment of conviction and, with permission,from the order denying his postconviction motion.
Initially, we agree with defendant that he did not validly waive the right to appeal. CountyCourt did not adequately explain the separate and distinct nature of the right to appeal (see People v Ritter, 124 AD3d1133, 1134 [2015]). Moreover, although defendant also executed a written waiver, CountyCourt did not confirm as to whether defendant understood the waiver (see People v Bradshaw, 18 NY3d257, 264-266 [2011]; People vLunan, 141 AD3d 947, 948 [2016], lv denied 28 NY3d 1125 [2016]; People v Jeffery, 135 AD3d 1235,1236 [2016]; [*2]compare People v Griffin, 134 AD3d 1228, 1228-1229[2015], lv denied 27 NY3d 1132 [2016]). As such, defendant's challenge to the severityof the sentence imposed is properly before us for review. Nonetheless, given defendant'sextensive criminal history, we find no extraordinary circumstances or abuse of discretion thatwould require modification of the agreed-upon sentence in the interest of justice (see People v Rabideau, 130 AD3d1094, 1095 [2015]; People vKerwin, 117 AD3d 1097, 1098 [2014]).
Defendant also challenges the denial of his motion to vacate the judgment without a hearing,which was premised upon the claim that his plea was not knowing and voluntary as the result ofineffective assistance of counsel. His assertions that counsel pressured him into pleading guiltyand failed to investigate whether defendant had entered the premises unlawfully were properlyrejected. Defendant affirmed during the plea colloquy that he was not coerced into pleadingguilty, that he was entering his plea voluntarily and of his own free choice and that he wassatisfied with counsel's representation. Further, the record reflects that counsel made a pretrialchallenge to the legal sufficiency of the evidence supporting the indictment and secured afavorable plea deal. The record also contains written statements from the victims, which statethat defendant did not have permission to enter their residence. No hearing was requiredregarding these issues "inasmuch as defendant's arguments could properly be resolved basedupon the contents of the record" and defendant's proffered affidavit in support "failed todemonstrate that the nonrecord facts sought to be established are material and would entitle himto relief" (People v Decker, 139AD3d 1113, 1117 [2016] [internal quotation marks and citations omitted], lv denied28 NY3d 928 [2016]; see People vOddy, 144 AD3d 1322, 1324 [2016]).
We reach a different conclusion regarding defendant's claim in his CPL 440.10 motion thatcounsel's representation was ineffective for failing to inform him that the required element ofcriminal intent for burglary in the second degree (see Penal Law § 140.25)could be negated by the defense of intoxication. The victims' statements to police include theobservations that defendant "looked high and his speech was slow" and that defendant appeared"either drunk or stoned." Additionally, his criminal record reflects a history of alcohol-relatedarrests and convictions. Insofar as a defendant's knowledge that the element of intent may benegated by the potential defense of intoxication is essential to a knowing and voluntary plea (see People v Doane, 145 AD3d1088, 1089 [2016]) and there is no indication that defendant was aware of the intoxicationdefense and knowingly waived his right to present such evidence, we are persuaded thatdefendant has raised an issue sufficient to require a hearing (see People v Davey, 91 AD3d 1033, 1034 [2012]; People vThomson, 279 AD2d 644, 645 [2001]). Defendant's remaining claims have been reviewedand found to be without merit.
McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed. Ordered that the order is reversed, on the law, and matter remitted to the County Courtof St. Lawrence County for further proceedings not inconsistent with this Court's decision, and,as so modified, affirmed.