| People v Stuber |
| 2022 NY Slip Op 03149 [205 AD3d 1147] |
| May 12, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Shawn Stuber, Appellant. |
Barrett D. Mack, Albany, for appellant.
Susan J. Mallery, District Attorney, Howes Cave (Kevin P. Mallery of counsel), forrespondent.
Egan Jr., J.P. Appeals (1) from a judgment of the County Court of Schoharie County (BartlettIII, J.), rendered July 10, 2019, convicting defendant upon his plea of guilty of the crime ofassault in the second degree, and (2) by permission, from an order of said court, entered June 1,2020, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment ofconviction, without a hearing.
In the course of a March 2018 confrontation over a woman both were acquainted with,defendant struck the victim in the head with a meat cleaver. Defendant was soon arrested and, inAugust 2018, was charged in an indictment with assault in the second degree.[FN1] The August 2018 indictment wasdismissed with leave to re-present the matter to a grand jury, and a new indictment was handedup in December 2018 charging defendant with the same offense. Defendant pleaded guilty to thatindictment after being advised by County Court that it was making no sentencing promises andthat he could receive up to seven years in prison. County Court thereafter sentenced defendant toa prison term of three years to be followed by postrelease supervision of three years. Defendantthen moved pro se to vacate the judgment of conviction, and that motion was supplemented bysubsequently appointed counsel. County Court denied the motion without a hearing. Defendantappeals from the judgment and, by permission, from the denial of his CPL 440.10 motion.
We affirm. Defendant argues upon his direct appeal that he received the ineffectiveassistance of counsel in various respects. To the extent that defendant's claims survive his guiltyplea, they are unpreserved for our review in the absence of any indication that he moved towithdraw his plea despite having had ample opportunity to do so (see People v Ballard, 200 AD3d1476, 1477-1478 [2021], lv denied 38 NY3d 925 [2022]; People v Stanley, 189 AD3d 1818,1818 [2020]; People v Marshall,173 AD3d 1257, 1258 [2019]; People v Allevato, 170 AD3d 1264, 1265 [2019], lv denied34 NY3d 949 [2019]; see also People vMorales, 119 AD3d 1082, 1084 n [2014], lv denied 24 NY3d 1086 [2014]). Thenarrow exception to the preservation requirement is inapplicable, as defendant made no"statements during the plea colloquy or at sentencing that were inconsistent with his guilt or thatotherwise called into question the voluntariness of his plea" (People v Drake, 179 AD3d 1221, 1222 [2020], lv denied 35NY3d 941 [2020]; see People v Allevato, 170 AD3d at 1265). To the contrary, the pleacolloquy contains defendant's assurances that he understood that no sentencing commitmentswere being made, that he had no mental issues that would prevent him from understanding theproceedings, that he had discussed all possible defenses he might have with defense counsel andwas satisfied with counsel's representation, and that he was making a knowing, intelligent andvoluntary decision to plead guilty.
Defendant further asserts that the sentence was harsh and [*2]excessive due to County Court's failure to take into account theimpulse control problems that he supposedly developed from a 2012 traumatic braininjury.[FN2] County Courtdid consider that issue, however, observing that defendant's history of behavioral problems andviolence began decades before the injury was sustained. County Court thereafter imposed aprison term one year above the statutory minimum (see Penal Law § 70.02[1] [c]; [3] [c]), and we perceive no abuse of discretion or extraordinary circumstances thatwould warrant a reduction in that sentence (see People v Rosario, 203 AD3d 1404, 1405-1406 [2022]; People v Morehouse, 202 AD3d1370, 1372-1373 [2022]).
Turning to the appeal from the order denying his CPL article 440 motion, defendantprimarily asserts that defense counsel was ineffective in failing to seek dismissal of theDecember 2018 indictment on speedy trial grounds. As he failed to raise that issue in the motion,it is unpreserved for our review (see People v Ballard, 200 AD3d at 1478 n; People v Sparks, 160 AD3d 1279,1280 [2018], lv denied 32 NY3d 1115 [2018]). His failure to advance the issue in hismotion papers leaves "the record . . . insufficient to assess whether defendant'sspeedy trial rights were violated, . . . whether defense counsel's failure to make amotion to dismiss on speedy trial grounds amounts to ineffective assistance of counsel" and, byextension, whether counsel assigned to provide assistance on the CPL article 440 motion shouldhave raised it (People v Marshall, 173 AD3d at 1258; see People v Gardiner, 159 AD3d 1233, 1234 [2018], lvdenied 31 NY3d 1082 [2018]; People v Obert, 1 AD3d 631, 632 [2003], lv denied 2 NY3d764 [2004]).
To the extent that defendant continues to pursue the arguments that he actually raised in themotion papers, "[a] court may deny a CPL 440.10 motion without a hearing if '[a]n allegation offact essential to support the motion . . . is contradicted by a court record. . . , or is made solely by the defendant and is unsupported by any other affidavit orevidence, and . . . there is no reasonable possibility that such allegation istrue' " (People v Betances,179 AD3d 1225, 1226 [2020], lv denied 35 NY3d 968 [2020], quoting CPL 440.30[4] [d]; see People v Durham, 195AD3d 1318, 1320 [2021], lv denied 37 NY3d 1160 [2022]). Defendant contendedthat defense counsel failed to facilitate his testimony before the grand jury that handed up theDecember 2018 indictment. The People demonstrated via documentary evidence that defensecounsel did give notice of defendant's intent to testify before the grand jury, however, and that helater withdrew that notice because defendant did not wish to testify. Defendant offered nothingbeyond bare assertions that defense counsel lacked his blessing to make that withdrawal or that,as required to establish an ineffective assistance claim, "the outcome would have been differenthad" he testified (People vMcPherson, 170 AD3d 1255, 1257[*3][2019], lvdenied 33 NY3d 1071 [2019]; seePeople v Hogan, 26 NY3d 779, 787 [2016]). As such, defendant fell well short ofdemonstrating his entitlement to a hearing on that issue.
Defendant's further suggestions that defense counsel failed to properly present evidence ofhis traumatic brain injury or object to inflammatory comments made by the People at sentencingare contradicted by the sentencing transcript and other evidence in the record. Similarly,defendant's vague claims of inaccuracies in the presentence investigation report that defensecounsel failed to address are "unsupported by the record or by any evidentiary submission otherthan defendant's affidavit" (People vStacchini, 108 AD3d 866, 867 [2013]). Defendant's remaining contentions are no morepersuasive and, thus, County Court did not abuse its discretion in denying the motion in itsentirety without a hearing (see CPL 440.30 [4] [d]; People v Johnson, 194 AD3d 1267, 1269 [2021]).
Aarons, Reynolds Fitzgerald, Fisher and McShan, JJ., concur. Ordered that the judgment andorder are affirmed.
Footnote 1:The August 2018 indictment isreferred to as an "amended" one—implying another, original one—but the recordson appeal do not contain an earlier indictment or suggest that one existed.
Footnote 2:Defendant's efforts to raise theissue of whether his sentence was harsh and excessive in the context of his CPL article 440motion are unavailing, as that issue is not "a proper subject of a CPL 440.10 motion" (People v Sloley, 179 AD3d 1308,1313 [2020], lv denied 35 NY3d 974 [2020]).