| People v Carston |
| 2018 NY Slip Op 05228 [163 AD3d 1166] |
| July 12, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Allahvelle A. Carston, Appellant. |
Christopher Hammond, Cooperstown, for appellant, and appellant pro se.
Weeden A. Wetmore, District Attorney, Elmira (Sophie Marmor of counsel), forrespondent.
Clark, J. Appeals (1) from a judgment of the County Court of Chemung County (Hayden, J.),rendered October 19, 2015, convicting defendant upon his plea of guilty of the crime of assault inthe first degree, and (2) by permission, from an order of said court, entered December 21, 2016,which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
In November 2012, defendant was charged by indictment with attempted murder in thesecond degree and assault in the first degree for allegedly stabbing the victim in the left side ofhis chest and in his right arm during an altercation. Defendant was ultimately arraigned inNovember 2014 after being apprehended in Florida by the United States Marshals Service. In fullsatisfaction of the indictment, defendant entered into a plea agreement before County Court (RichJr., J.) whereby he agreed to plead guilty to assault in the first degree in exchange for a prisonterm of 10 years, followed by five years of postrelease supervision. County Court (Hayden, J.)subsequently sentenced defendant, as a second felony offender, in accordance with the terms ofthe plea agreement. Defendant thereafter moved pursuant to CPL 440.10 to vacate the judgmentof conviction, alleging that he received ineffective assistance of counsel, that the prosecutorengaged in prosecutorial misconduct and that he did not knowingly, voluntarily and intelligentlyenter into his plea agreement. County Court denied the motion without a hearing. [*2]Defendant now appeals from the judgment of conviction and, withpermission of this Court, from the order denying his CPL article 440 motion.
We affirm. Initially, by pleading guilty, defendant forfeited his claim that County Courtfailed to rule on his preplea motion to dismiss the indictment pursuant to CPL 210.30, as theright to challenge the sufficiency of the grand jury evidence ceases upon entry of a guilty plea(see People v Dunbar, 53 NY2d 868, 871 [1981]; People v Williams, 25 AD3d 927, 929 [2006], lv denied 6NY3d 840 [2006]). Defendant's claim that he was deprived of his statutory right to a speedy trialunder CPL 30.30 is similarly foreclosed by his guilty plea (see People v O'Brien, 56NY2d 1009, 1010 [1982]; People v Friscia, 51 NY2d 845, 847 [1980]; People v Lydecker, 116 AD3d1160, 1161 [2014], lv denied 24 NY3d 962 [2014]).
Defendant's contentions regarding the factual sufficiency of the plea allocution and CountyCourt's (Rich Jr., J.) failure to inquire about a possible justification defense before accepting theplea are unpreserved, as he failed to make an appropriate postallocution motion (see People v Muller, 159 AD3d1232, 1232 [2018]; People vBailey, 158 AD3d 948, 948 [2018]; People v Buck, 136 AD3d 1117, 1118 [2016]). Furthermore,defendant did not make any statements during the plea allocution that cast doubt upon his guilt orotherwise called into question the voluntariness of his plea, so as to trigger the narrow exceptionto the preservation requirement (seePeople v Tyrell, 22 NY3d 359, 363 [2013]; People v Johnson, 153 AD3d 1047, 1048 [2017], lv denied30 NY3d 1061 [2017]). Moreover, defendant did not, at any time during the plea allocution,make any statements that would suggest that he acted in self-defense and thereby require thecourt to inquire further (see People v Buck, 136 AD3d at 1118; compare People v Perez, 101 AD3d1162, 1162-1163 [2012]).
Finally, with respect to defendant's appeal from the denial of his CPL article 440 motion,County Court (Hayden, J.) was not required to conduct a hearing regarding defendant'sineffective assistance of counsel claim based upon defense counsel's alleged failure to advise himof a potential justification defense and to secure statements from certain potential witnesses.Defendant's own sworn statements, made in support of his postconviction motion, demonstratethat he and defense counsel discussed the possibility of asserting that defendant acted inself-defense and that defense counsel advised against that defense. Furthermore, althoughdefendant takes issue with defense counsel's alleged failure to locate and speak with a particulargrand jury witness, defendant failed to demonstrate that this person could or would haveprovided any information that would have been helpful to his defense (compare People v Cruz, 152 AD3d822, 825 [2017], lv denied 30 NY3d 1018 [2017]; People v Rapp, 133 AD3d 979,980-981 [2015]). Accordingly, as defendant did not support his claim of ineffective assistance ofcounsel with factual allegations that, if established, would entitle him to relief, County Courtproperly denied the motion without a hearing (see People v Satterfield, 66 NY2d 796,799 [1985]; People v Griffin, 89AD3d 1235, 1237-1238 [2011]).
McCarthy, J.P., Egan Jr., Lynch and Pritzker, JJ., concur. Ordered that the judgment andorder are affirmed.