Opinion
12251B
Decided and Entered: July 17, 2003.
Charles J. Keegan, Albany, for appellant.
Terry J. Wilhelm, District Attorney, Catskill (Dominic J. Cornelius of counsel), for respondent.
Before: Crew III, J.P., Peters, Spain, Rose and Kane, JJ.
MEMORANDUM AND ORDER
Appeals (1) from a judgment of the County Court of Greene County (Lalor, J.), rendered February 22, 2000, convicting defendant upon his plea of guilty of the crime of arson in the third degree, and (2) by permission, from an order of said court, entered May 16, 2002, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Fire damaged a condemned apartment building where defendant formerly resided. Arson was suspected, as electric and gas services had been terminated, no combustible materials were stored there, and there were three separate fires in the living rooms of three different apartments. When defendant was questioned by police shortly after the fires started, he admitted to having been in the building that evening and that he dropped cigarettes and a lit match in two different apartments, but denied knowledge of any fire. After indictment, defendant agreed to enter a plea to arson in the third degree with a recommended sentence of 3 to 6 years in prison and waiver of his right to appeal. After defendant stated that he would plead guilty but that he started the fire accidentally, not intentionally, he was permitted to enter anAlford plea and received the agreed upon sentence. Defendant now appeals his conviction and the denial of his subsequent CPL 440.10 motion.
The issues raised by defendant may be addressed on a CPL article 440 motion or can be raised on direct appeal despite a waiver of appeal. Defendant first contends that County Court improperly accepted hisAlford plea. An Alford plea, wherein the accused is permitted to enter a guilty plea without admitting culpability, may be allowed only where such plea "is the product of a voluntary and rational choice, and the record before the court contains strong evidence of actual guilt" (Matter of Silmon v. Travis, 95 N.Y.2d 470, 475; see North Carolina v. Alford, 400 U.S. 25, 37). The defendant is not required to make a factual recitation confirming guilt; the court may accept the plea if satisfied that there is a sufficient factual basis for the plea based on its review of the information before it (see People v. Clemons, 299 A.D.2d 666, 667, lv denied 99 N.Y.2d 627). Protestations of innocence do not preclude the court from accepting anAlford plea (see People v. Crandall, 272 A.D.2d 717, 717).
Here, strong evidence of guilt was contained in the grand jury minutes and motion submissions, including statements from defendant and three witnesses, all of which was reviewed by County Court before defendant's plea was taken (see People v. Clemons, supra at 667; People v. Berry, 286 A.D.2d 548, 549-550, lv denied 97 N.Y.2d 701; People v. Spulka, 285 A.D.2d 840, 841, lv denied 97 N.Y.2d 643). The court's colloquy discussed the rights being given up as a result of the plea, the consequences of a conviction after a plea, that defendant had discussed the charge and options with his attorney, that he was satisfied with his attorney's services, the meaning of an Alford plea — that defendant was pleading guilty because there was heavy proof against him, it was likely that he would be convicted at trial, he was facing a possibility of 15 years' imprisonment, and this plea avoided the risk by assuring a lesser sentence — and the court recited the specifics of the crime charged. Accepting this plea was a rational choice to limit the sentencing exposure had he gone to trial, which was accomplished by defendant knowingly, voluntarily and with an understanding of the consequences (see People v. Jones, 109 A.D.2d 893, lv denied 66 N.Y.2d 764).
Contrary to defendant's assertion, County Court did not err by deciding his CPL article 440 motion without a hearing. Sufficient information regarding effectiveness of counsel appeared on the record and could be addressed in defendant's pending appeal (see CPL 440.10 [b]), and defendant's conclusory and vague allegations in his motion papers were inadequate to raise an issue (see People v. Hickey, 277 A.D.2d 511, 512, lv denied 95 N.Y.2d 964; People v. Shamblee, 222 A.D.2d 834, 835, lv denied 88 N.Y.2d 994). Defendant stated at the plea allocution that he had sufficient time to discuss the matter with counsel, he was satisfied with counsel's services, he was pleading of his own free will and no one coerced his plea. As such, the record was adequate for County Court to deny the motion without a hearing.
Defendant also alleges ineffective assistance of counsel. Any claim of ineffectiveness of his first trial attorney was forfeited by his plea after consultation with his second counsel, who was aware of the alleged deficiencies of original counsel (see People v. Ireland, 274 A.D.2d 743, 744, lv denied 95 N.Y.2d 965). Second counsel provided meaningful representation by making discovery motions, requesting a bill of particulars, moving to suppress statements, requesting hearings, and obtaining a favorable plea bargain (see People v. Nieves, 302 A.D.2d 625, 626; People v. Powell, 299 A.D.2d 574, 575).
Defendant's contention that he was improperly sentenced as a second felony offender must also fail. County Court must "ask [the defendant] whether he [or she] wishes to controvert any allegation" in the second felony offender statement (CPL 400.21). The People provided the required statement to defense counsel several days before sentencing. When defendant denied any knowledge sufficient to form a belief as to his prior conviction, the People presented defendant and the court with a certificate of conviction for the predicate felony after which the court inquired of defendant whether there was anything he wished to say. Defendant never indicated, including in his CPL article 440 motion papers or on appeal, that he was not the individual convicted of the predicate felony, nor that there was any constitutional infirmity to that conviction. In fact, the court noted several times during the plea colloquy that the sentence would be based on defendant's status as a second felony offender, with no protestation by defendant. Although the court never used the word "controvert" after reciting the substance of the certificate of conviction, the court substantially complied with the statute by inquiring of defendant whether there was anything he wished to say (see CPL 400.21;People v. Booker, 280 A.D.2d 785, 786, lv denied 96 N.Y.2d 916). Accordingly, sentence was properly imposed.
Crew III, J.P., Peters, Spain and Rose, JJ., concur.
ORDERED that the judgment and order are affirmed.