| People v Robles |
| 2019 NY Slip Op 04056 [172 AD3d 1780] |
| May 23, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Enrique Robles, Appellant. |
Cliff Gordon, Monticello, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Devine, J. Appeals (1) from a judgment of the Supreme Court (Breslin, J.), rendered January10, 2017 in Albany County, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the third degree, and (2) by permission, from an order ofsaid court, entered March 20, 2018 in Albany County, which denied defendant's motion pursuantto CPL 440.10 to vacate the judgment of conviction, without a hearing.
In satisfaction of a four-count indictment, defendant pleaded guilty to criminal possession ofa controlled substance in the third degree and waived his right to appeal, both orally and inwriting. Under the terms of the negotiated plea agreement, Supreme Court agreed to sentencedefendant to a term of imprisonment no greater than 10 years, to be followed by three years ofpostrelease supervision. Prior to sentencing, defendant provided cooperation to the State Policein certain criminal matters, resulting in the confiscation of numerous firearms. Taking this intoconsideration, Supreme Court sentenced defendant as a second felony offender to four years inprison, followed by three years of postrelease supervision. Thereafter, he made a pro se motionpursuant to CPL 440.10 to vacate the judgment of conviction on the ground that he was deniedthe effective assistance of counsel. Supreme Court denied the motion. Defendant appeals fromthe judgment of conviction and, by permission, from the order denying his CPL 440.10motion.
Defendant contends, among other things, that he was promised that he would not serve anyprison time if he cooperated with the State Police and, having provided such cooperation, wasdeprived of the benefit of his plea bargain by being sentenced to a term ofimprisonment.[FN1] Therecord, however, does not support defendant's claim. At the inception of the plea proceedings,Supreme Court stated on the record that the plea agreement required that defendant plead guiltyto criminal possession of a controlled substance in the third degree and that he waive his right toappeal, in exchange for which he would be sentenced to no more than 10 years in prison followedby three years of postrelease supervision. Defendant communicated that he wished to plead guiltyin accordance with these terms and there was never any mention of him not receiving any prisontime if he cooperated with police. Although he acknowledges that this alleged representation wasmade by one of the investigators following his arrest, it was certainly not binding on the court (see People v Brown, 119 AD3d980, 981 n [2014], lv denied 24 NY3d 959 [2014]). Accordingly, defendant was notdeprived of the benefit of his plea bargain (see People v Widger, 160 AD3d 1297, 1298 [2018]; People v Brown, 123 AD3d 1300,1301 [2014], lv denied 25 NY3d 1198 [2015]).
Defendant further asserts that he was deprived of the effective assistance of counsel.Specifically, he maintains that counsel neglected to take measures to enforce the alleged pleaagreement under which he would not receive any prison time if he cooperated with the StatePolice.[FN2] As notedabove, however, there is nothing in the record to substantiate the existence of such a pleaagreement. Notably, defendant remained silent when sentence was pronounced and nevermentioned that his sentence should not include prison time. Moreover, he failed to put forth anyproof, other than his own self-serving statement, in support of his CPL 440.10 motion.Furthermore, defendant indicated to Supreme Court during the plea proceedings that he was fullysatisfied with his counsel's representation. The record discloses that, in arguing for a reducedsentence, his counsel stressed defendant's cooperation with the police and succeeded in securinga sentence of only four years in prison, significantly less than the 10 years that could have beenimposed. Inasmuch as the record reveals that counsel negotiated an advantageous plea andnothing therein casts doubt upon counsel's effectiveness, we find that defendant was providedmeaningful representation (see People vGriffin, 165 AD3d 1316, 1318 [2018]; People v Jackson, 159 AD3d 1276, 1277 [2018], lv denied31 NY3d 1149 [2018]; People vPecararo, 83 AD3d 1284, 1286-1287 [2011], lv denied 17 NY3d 820[2011]).
Egan Jr., J.P., Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgment and orderare affirmed.
Footnote 1:To the extent that this may beconstrued as a challenge to the severity of the sentence, it is precluded by defendant's waiver ofthe right to appeal which, contrary to defendant's contention, we find to be valid (see People v Peryea, 169 AD3d1120, 1120 [2019], lv denied 33 NY3d 980 [2019]; People vChapman, 168 AD3d 1315, 1316 [2019]).
Footnote 2:Notably, defendant concedes thathis assertions that counsel was ineffective for failing to request the search warrant, engage inmotion practice or contest the drug test results are waived by his guilty plea.