| People v Loika |
| 2017 NY Slip Op 06676 [153 AD3d 1516] |
| September 28, 2017 |
| Appellate Division, Third Department |
[*1](September 28, 2017)
| The People of the State of New York, Respondent, v KennethLoika, Appellant. |
Allen & Desnoyers, LLP, Albany (George J. Hoffman Jr. of counsel), for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), forrespondent.
Lynch, J. Appeals (1) from a judgment of the County Court of Schenectady County (Drago,J.), rendered April 3, 2013, convicting defendant upon his plea of guilty of the crime of criminalpossession of a weapon in the second degree, and (2) by permission, from an order of said court(Sypniewski, J.), entered January 5, 2016, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment of conviction, without a hearing.
After a confidential informant made controlled purchases of drugs from defendant at hisresidence in Schenectady County, police officers executed a search warrant and recoveredmarihuana, hydrocodone pills and a loaded handgun. As a result, defendant was charged inmultiple felony complaints with numerous crimes, but he waived indictment and pleaded guiltyto criminal possession of a weapon in the second degree in satisfaction of the charges. He alsowaived his right to appeal, both orally and in writing. In accordance with the terms of the pleaagreement, County Court (Drago, J.) sentenced defendant as a second violent felony offender toseven years in prison, to be followed by five years of postrelease supervision. He subsequentlymoved pursuant to CPL 440.10 (1) (b) to vacate the judgment of conviction, and County Court(Sypniewski, J.) denied his motion. Defendant appeals from the judgment of conviction and, bypermission, from the order denying his CPL 440.10 motion.
Initially, defendant contends that his guilty plea was not knowing, voluntary or [*2]intelligent and should be vacated pursuant to CPL 440.10 (1) (b)because it was induced by fraud.[FN*] He premises his claim upon the fact that theconfidential informant who supplied the information providing the basis for the search warrantapplication was convicted of certain crimes arising from fraudulent misrepresentations that hemade in connection with another undercover drug transaction. The record, however, reveals thatdefendant made a previous CPL 440.10 motion in this action on this same ground and that themotion was denied. In view of this, we find that County Court (Sypniewski, J.) properly deniedthe present motion under CPL 440.10 (3) (b) (see People v Huggins, 130 AD3d 1069 [2015], lv denied 26NY3d 1089 [2015]). Even if we were to consider the motion under CPL 440.10 (1) (b), we wouldfind that this provision is inapplicable given that the confidential informant's criminal conductoccurred several months after defendant entered his guilty plea and involved a completelyunrelated criminal matter (comparePeople v Seeber, 94 AD3d 1335, 1338 [2012]). As there is no indication that theconfidential informant's criminal conduct amounted to fraud that tainted this action, a hearing ondefendant's CPL 440.10 motion was not warranted (see generally People v Phillips, 71 AD3d 1181, 1182-1183 [2010],lv denied 15 NY3d 755 [2010]; People v Thomas, 53 AD3d 864, 865-866 [2008], lv denied11 NY3d 858 [2008]).
Defendant further contends that the sentence is harsh and excessive. Although such a claim isprecluded by a valid waiver of the right to appeal, we find that defendant's waiver was invalidinasmuch as he was not advised of the separate and distinct nature of the waiver and did notcommunicate to County Court (Drago, J.) that he fully understood its consequences (see People v Aubain, 152 AD3d868, 869 [2017]; People vRock, 151 AD3d 1383, 1384 [2017]). Nevertheless, we conclude that defendant'schallenge to the severity of the sentence has no merit. Defendant has a violent criminal historythat includes prior orders of protection, and he avoided being charged with and potentiallyconvicted of numerous other crimes in exchange for pleading guilty to the crime at issue. In viewof this, and considering that he received the statutory minimum term of imprisonment(see Penal Law §§ 70.04 [3] [b]; 265.03 [3]), we find no extraordinarycircumstances or any abuse of discretion warranting a reduction of the sentence in the interest ofjustice (see People v Cherry, 149AD3d 1346, 1348 [2017], lv denied 29 NY3d 1124 [Aug. 16, 2017]; People vGraham, 138 AD3d 1242, 1244 [2016], lv denied 28 NY3d 930 [2016]).
Garry, J.P., Egan Jr., Aarons and Pritzker, JJ., concur. Ordered that the judgment and orderare affirmed.
Footnote *:We note that such claim survivesa valid waiver of the right to appeal (seePeople v Pixley, 150 AD3d 1555, 1556 [2017]; People v Dubois, 150 AD3d 1562, 1563 [2017]), and we addressthe validity of defendant's waiver infra.