| People v Stanley |
| 2020 NY Slip Op 07627 [189 AD3d 1818] |
| December 17, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Edward Stanley, Appellant. |
Todd G. Monahan, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Lynch, J. Appeals (1) from a judgment of the County Court of Schenectady County(Sypniewski, J.), rendered June 28, 2017, convicting defendant upon his plea of guilty of thecrime of burglary in the second degree, and (2) by permission, from an order of said court,entered September 11, 2019, which denied defendant's motion pursuant to CPL 440.10 to vacatethe judgment of conviction, without a hearing.
In satisfaction of the charges then pending against him, defendant waived indictment andagreed to plead guilty to a superior court information charging him with one count of burglary inthe second degree with the understanding that he would be sentenced—as a second felonyoffender—to a prison term of 5
Nearly two years later, defendant moved pursuant to CPL 440.10 to vacate the judgment ofconviction, contending that he had not been afforded the effective assistance of counsel. ThePeople opposed defendant's application, and County Court denied the requested relief without ahearing. Defendant appeals from the judgment of conviction and, by permission, from the orderdenying his CPL article 440 motion.
We affirm. To the extent that defendant's ineffective assistance of counsel claim impactsupon the voluntariness of his plea, such claim survives his unchallenged appeal waiver but isunpreserved for our review in the absence of an appropriate postallocution motion (seeCPL 220.60 [3]; People v Vilbrin,183 AD3d 1012, 1013 [2020], lv denied 35 NY3d 1049 [2020]; People v Koontz, 166 AD3d 1215,1217-1218 [2018], lv denied 32 NY3d 1206 [2019]). Further, "defendant did not makeany statements during the plea colloquy that would trigger the narrow exception to thepreservation rule" (People v Tamah,133 AD3d 923, 924 [2015]; seePeople v Weidenheimer, 181 AD3d 1096, 1097 [2020]). Were we to address this issue,we would find it to be lacking in merit, as nothing on the face of the plea colloquy calls intoquestion counsel's effectiveness (seePeople v Heier, 73 AD3d 1392, 1393 [2010], lv denied 15 NY3d 805 [2010]) orotherwise supports defendant's belated claim of coercion (cf. People v Wyant, 47 AD3d 1068, 1069 [2008], lv denied10 NY3d 873 [2008]).
Turning to defendant's CPL 440.10 motion, "[o]n a motion to vacate a judgment ofconviction, a hearing is only required if the submissions show that the nonrecord facts sought tobe established are material and would entitle the defendant to relief" (People v Vargas, 173 AD3d 1466,1468 [2019] [internal quotation marks and citations omitted], lv denied 34 NY3d 955[2019]; see CPL 440.30 [5]). In this regard, a court may deny such a motion where, ashere, "the necessary facts, which do not appear on the record on direct appeal, could 'have readilybeen made to appear on the record' " through [*2]theexercise of due diligence by the defendant (People v Howe, 150 AD3d 1321, 1323 [2017], quoting CPL 440.10[3] [a]). Similarly, "[a] court may deny a vacatur motion without a hearing if it is based on thedefendant's self-serving claims that are contradicted by the record or unsupported by any otherevidence" (People v Vargas, 173 AD3d at 1468) and "there is no reasonable possibilitythat such allegation[s are] true" (CPL 440.30 [4] [d] [ii]; see People v Betances, 179 AD3d 1225, 1226 [2020], lvdenied 35 NY3d 968 [2020]; Peoplev Dickson-Eason, 143 AD3d 1013, 1015 [2016], lv denied 28 NY3d 1123[2016]).
In support of his motion, defendant averred that, as he was entering his guilty plea, he askedcounsel a question about the evidence in the case, at which point counsel allegedly informeddefendant that there was no chain of custody documentation for DNA evidence linking him to theunderlying burglary. Even setting aside the fact that the attorney to whom defendant nowattributes such statement was not actually present in the courtroom with defendant at the timethat defendant entered his plea, defendant's own affidavit demonstrates that he was well aware ofthis issue prior to sentencing, and the record makes clear that defendant made no effort to raisethis issue before sentencing or at any point prior to bringing the instant motion (see People v Chaney, 160 AD3d1281, 1285 [2018], lv denied 31 NY3d 1146 [2018])—despite the fact thatdefense counsel acknowledged at sentencing that the charges against defendant "resulted from aCODIS hit." Additionally, defendant did not submit an affidavit from the attorney whorepresented him at the plea proceeding attesting to their alleged conversation regarding thestrength of the People's case (see People v Betances, 179 AD3d at 1226), nor diddefendant offer any additional facts in support of his motion—stating only that he was"prepared to provide further details" should a hearing on his motion be granted and expressinghis arguably contradictory belief that there was "an innocent explanation" for the presence of hisDNA at the scene of the crime. As for defendant's contention that he was coerced into pleadingguilty by threats to arrest his fiancée if he refused to do so, defendant acknowledged duringthe plea colloquy that no one threatened or coerced him into pleading guilty. Under thesecircumstances, we do not find that County Court abused its discretion in denying defendant'smotion to vacate the judgment of conviction without a hearing. Defendant's remainingarguments, to the extent not specifically addressed, have been examined and found to be lackingin merit.
Garry, P.J., Clark, Mulvey and Reynolds Fitzgerald, JJ., concur. Ordered that the judgmentand order are affirmed.