Opinion
2006-393 Q CR.
Decided on January 28, 2008.
Appeal from an order of the Criminal Court of the City of New York, Queens County (Robert M. Raciti, J.), entered February 3, 2006. The order, following a hearing, granted defendant's motion to vacate the judgment of conviction pursuant to CPL 440.10.
Order affirmed.
PRESENT: WESTON PATTERSON, J.P., and RIOS, J.
The People appeal from an order, following a hearing, which granted defendant's motion to vacate a judgment (CPL 440.10 [h]) convicting defendant, upon his guilty plea ( see North Carolina v Alford, 400 US 25; People v Serrano, 15 NY2d 304), of attempted criminal contempt in the second degree (Penal Law §§ 110.00, 215.50) and attempted criminal mischief in the fourth degree (Penal Law §§ 110.00, 145.00). At the hearing, defendant testified that he would not have entered his guilty plea "but for" his counsel's erroneous advice that he could reserve his right to appeal the order denying his speedy trial motion (CPL 30.30), notwithstanding his guilty plea, and that there was merit to such appeal ( People v McDonald, 1 NY3d 109, 115; People v Pierce , 38 AD3d 262 , 263). Defendant further testified that he informed his attorney that his primary concerns were his right to appeal the denial of his CPL 30.30 motion and his opportunity to enter an Alford plea, and believed that going to trial carried no sentencing risk because a conviction would not expose him to a period of incarceration beyond what he had already served. In the course of the plea proceedings, defendant's attorney expressly reserved defendant's right to appeal from the adverse determination of his motion to dismiss the accusatory instrument based on the denial of his statutory right to a speedy trial.
The People do not dispute that the order deciding the CPL 30.30 motion was not appealable following defendant's guilty plea ( People v O'Brien, 56 NY2d 1009, 1010; People v Douglas, ___ AD3d ___, 2007 NY Slip Op 09788 [2nd Dept 2007]; People v Lane, 1 AD3d 801, 803; People v Attanasio, 240 AD2d 877). Thus, defendant's assertion, if credited, that he relied on counsel's erroneous advice when electing to forgo trial and to enter a guilty plea, would establish that the plea was not "a voluntary and intelligent choice among the alternative courses of action open to the defendant" ( North Carolina v Alford, 400 US at 31) and that trial counsel failed to afford him "meaningful representation" ( People v Benevento, 91 NY2d 708, 712).
It is axiomatic that "much weight must be accorded" a hearing court's credibility determinations ( People v Prochilo, 41 NY2d 759, 761) which may not be disturbed on appeal where supported by the record ( People v Mackey , 5 AD3d 136, 137; People v Cox, 297 AD2d 589; see also People v Guarino, 267 AD2d 324, 325 [credibility determinations will not be disturbed "unless clearly unsupported by the record"]). Here, the hearing court found credible defendant's assertions regarding his attorney's advice, his reliance thereon, and that he would not have pleaded guilty but for that advice, and we cannot say, upon this record, that the determination is "clearly unsupported."
Weston Patterson, J.P. and Rios, J., concur.