| People v DePerno |
| 2017 NY Slip Op 02473 [148 AD3d 1463] |
| March 30, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Daniel W. DePerno, Appellant. |
Mitch Kessler, Cohoes, for appellant, and appellant pro se.
Patrick A. Perfetti, District Attorney, Cortland (Elizabeth McGrath of counsel), forrespondent.
Clark, J. Appeal, by permission, from an order of the County Court of Cortland County(Campbell, J.), entered January 29, 2015, which denied defendant's motion pursuant to CPL440.10 and 440.20 to vacate the judgment of conviction and to set aside the sentence, without ahearing.
In 2010, defendant pleaded guilty to criminal sexual act in the second degree, rape in thesecond degree and rape in the third degree in satisfaction of, among other things, a 31-countindictment. County Court sentenced defendant, in accordance with the plea agreement, to anaggregate prison term of 10 years, followed by 10 years of postrelease supervision. The court alsoissued an order of protection in favor of the victim for the maximum period permitted by law.Upon defendant's appeal, which challenged only his sentence, this Court determined that theimposed sentences were illegal because, at the time that defendant committed the crimes, therelevant statutes provided for indeterminate sentences, rather than determinate sentences, and didnot authorize postrelease supervision (92 AD3d 1089, 1090 [2012]). Following remittal, CountyCourt resentenced defendant to an aggregate prison term of 6 to 18 years, as requested by thePeople, and reissued an order of protection for the maximum period permitted by law. Defendantappealed, and this Court, finding that County Court violated double jeopardy principles when itimposed on defendant an aggregate sentence with a maximum of more than 10 years in prison,modified the resentence to an aggregate maximum of 10 years in prison (111 AD3d 1058, 1059[2013]).
[*2] Defendant thereafter moved pro sepursuant to CPL 440.10 to vacate the judgment of conviction and pursuant to CPL 440.20 to setaside the sentence. County Court denied the motion without a hearing. With the permission ofthis Court, defendant now appeals from the order denying his CPL article 440 motion.
We are unpersuaded by defendant's contention that his CPL article 440 motion wasimproperly denied without a hearing. To the extent that the motion is premised upon defendant'sclaims of actual innocence given the alleged newly discovered evidence regarding the age of thevictim, we note that "vacatur of a judgment of conviction on this ground is expressly conditionedupon the existence of a verdict of guilt after trial and defendant's plea of guilty thereforeforeclosed relief upon this ground" (People v Larock, 139 AD3d 1241, 1243 [2016] [internal quotationmarks, brackets and citation omitted], lv denied 28 NY3d 932 [2016]; see People v Philips, 30 AD3d621, 622 [2006], lv denied 8 NY3d 949 [2007]). Defendant also asserts that hisclaims of ineffective assistance of counsel, specifically misinformation pertaining to hismaximum sentencing exposure and the failure to advise him that the maximum aggregatesentence would be reduced by operation of law, were sufficient to raise questions regarding thevoluntariness of the plea so as to require a hearing. As information regarding the maximumsentencing exposure appears on the face of the record and no additional background facts arenecessary to develop further information, the issue should have been raised on direct appeal andnot by way of a CPL 440.10 motion (see People v Satterfield, 66 NY2d 796, 799 [1985];People v Hillriegel, 78 AD3d1381, 1382 [2010]). In any event, "[t]hat the defendant allegedly received inaccurateinformation regarding his possible sentence exposure is [a] factor which must be considered bythe court, but it is not, in and of itself, dispositive" (People v Garcia, 92 NY2d 869, 870[1998]; see People v Mack, 140AD3d 791, 792 [2016], lv denied 28 NY3d 933 [2016]). In addition, defendantdeclined the opportunity to withdraw his plea when the matter was remitted for resentencing.Turning to the statutory calculation of the sentence by operation of law, we note that Penal Law§ 70.30, which provides for the calculation of the sentence, " 'does notaffect the authority of the courts to impose multiple sentences or govern the lengths of individualsentences' but instead it provides 'direction to the correctional authorities as to how to computethe time which must be served under the sentences' " (People ex rel. Ryan v Cheverko, 22 NY3d 132, 136 [2013], quotingPeople v Teti, 41 AD2d 841, 842 [1973]). The failure to inform defendant of suchcalculations—which is done by correctional authorities—does not render the pleainvoluntary.
With regard to defendant's assertion that he was coerced into pleading guilty to spare theprosecution of his wife and mother on unrelated charges involving the victim, it is well settledthat "so long as the plea agreement is voluntarily, knowingly and intelligently made, the fact thatit is linked to the prosecutor's acceptance of a plea bargain favorable to a third person does not,by itself, make defendant's plea illegal" (People v Fiumefreddo, 82 NY2d 536, 544[1993]). Further, "inclusion of a third-party benefit in a plea bargain is simply one factor for a[trial] court to weigh in making the overall determination whether the plea is voluntarily entered"(id. at 545; see People vFarnsworth, 140 AD3d 1538, 1540 [2016]). Here, the inclusion of such term in the pleaagreement appears on the face of the record and, therefore, is not subject to CPL article 440 reliefas it should have been raised on direct appeal (see People v Dickson-Eason, 143 AD3d 1013, 1015 [2016], lvdenied 28 NY3d 1123 [2016]). To the extent that defendant asserts actual innocence, hissubmissions belie any factual innocence (see People v Larock, 139 AD3d at 1244).
Finally, pursuant to CPL 440.20, defendant challenges as illegal the expiration date of thepermanent order of protection, as the expiration date should be in accordance with the [*3]resentence that was modified on appeal. As the permanent order ofprotection is not part of the sentence, corrective action pursuant to CPL 440.20 is inapplicable(see People v Nieves, 2 NY3d310, 316 [2004]; People vCrowley, 34 AD3d 866, 867 [2006], lv denied 7 NY3d 924 [2006]).[FN*] Defendant's remainingcontentions are unpersuasive.
McCarthy, J.P., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the order isaffirmed.
Footnote *:" '[B]ecause sentencingcourts are in the best position to amend permanent orders of protection, the betterpractice—and best use of judicial resources—is for a defendant seeking adjustmentof such an order to request relief from the issuing court in the first instance, resorting to theappellate courts only if necessary' " (People v Gardner, 129 AD3d 1386, 1388 n 2 [2015], quotingPeople v Nieves, 2 NY3d at 317).