Opinion
03-17-2016
The PEOPLE of the State of New York, Respondent, v. Michael CURRIER, Appellant.
Theresa M. Suozzi, Saratoga Springs, for appellant. Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.
Theresa M. Suozzi, Saratoga Springs, for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.
Opinion
ROSE, J.
Appeal, by permission, from an order of the County Court of Washington County (McKeighan, J.), entered January 9, 2015, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crime of predatory sexual assault against a child, without a hearing.
In satisfaction of a six-count indictment, defendant pleaded guilty to predatory sexual assault against a child and waived his right to appeal. At sentencing, defendant moved to withdraw his plea. County Court denied the motion and sentenced defendant in accordance with the negotiated plea agreement to a prison term of 10 years to life. Thereafter, defendant moved pursuant to CPL 440.10 to vacate the judgment on the grounds that there is newly discovered evidence of false representations by the victim, the factual recitation prior to entering his plea negated an essential element of the charge and he was denied the effective assistance of counsel. County Court denied the motion without a hearing and defendant, by permission, appeals. 1 We affirm. To the extent that defendant contends that the judgment of conviction must be vacated because there is newly discovered evidence in the form of an affidavit of the victim's cousin indicating that the victim admitted to fabricating the accusations against defendant, we note that defendant's plea of guilty foreclosed such relief, which is available only upon a verdict following a trial (see CPL 440.10[1][g]; People v. Rivera, 117 A.D.3d 1475, 1475, 984 N.Y.S.2d 723 [2014], lv. denied 23 N.Y.3d 1024, 992 N.Y.S.2d 807, 16 N.E.3d 1287 [2014]; People v. Lahon, 17 A.D.3d 778, 780, 793 N.Y.S.2d 238 [2005], lv. denied 5 N.Y.3d 790, 801 N.Y.S.2d 811, 835 N.E.2d 671 [2005]; People v. Sides, 242 A.D.2d 750, 751, 661 N.Y.S.2d 863 [1997], lv. denied 91 N.Y.2d 836, 667 N.Y.S.2d 690, 690 N.E.2d 499 [1997] ). Defendant's challenge to the voluntariness of his plea, his assertion that the plea colloquy negated an essential element of the crime and his challenge to the severity of the sentence imposed all should have been raised on a direct appeal and are not the proper subjects of a CPL 440.10 motion (see CPL 440.10[2][c]; People v. Lang, 127 A.D.3d 1253, 1255, 7 N.Y.S.3d 618 [2015]; People v. Morin, 117 A.D.3d 1315, 1317, 986 N.Y.S.2d 658 [2014], lvs. denied 24 N.Y.3d 1219, 1220, 4 N.Y.S.3d 607, 609, 28 N.E.3d 43, 45 [2015]; People v. Vallee, 97 A.D.3d 972, 974, 948 N.Y.S.2d 461 [2012], lv. denied 20 N.Y.3d 1104, 965 N.Y.S.2d 801, 988 N.E.2d 539 [2013] ).
We find no error in County Court's decision not to conduct a hearing on defendant's CPL 440.10 motion. Significantly, the judge hearing the motion had presided over the prior proceedings and was fully familiar with all aspects of the case. The knowledge of the underlying proceedings, together with the written submissions received in connection with the motion, provided the court with a sufficient basis to decide the motion without a hearing (see People v. Robetoy, 48 A.D.3d 881, 883, 851 N.Y.S.2d 297 [2008]; People v. Demetsenare, 14 A.D.3d 792, 793, 787 N.Y.S.2d 515 [2005] ). We also reject defendant's contention that he was denied meaningful representation because his counsel purportedly misinformed him regarding the length of the agreed-upon sentence, as the record reflects that defendant was fully aware of the sentence to be imposed at the commencement of the plea proceeding and he clearly stated during the plea colloquy that he was satisfied with defense counsel's representation. Under these circumstances, we find that defendant received meaningful representation and that the motion to vacate the judgment was properly denied (see People v. Lagas, 111 A.D.3d 1026, 1027, 974 N.Y.S.2d 659 [2013], lv. denied 22 N.Y.3d 1200, 986 N.Y.S.2d 420, 9 N.E.3d 915 [2014]; People v. Pecararo, 83 A.D.3d 1284, 1287, 920 N.Y.S.2d 859 [2011], lv. denied 17 N.Y.3d 820, 929 N.Y.S.2d 809, 954 N.E.2d 100 [2011] ).
ORDERED that the order is affirmed.
PETERS, P.J., GARRY, DEVINE and CLARK, JJ., concur.