Opinion
KA 03-00459.
Decided April 30, 2004.
Appeal from an order of the Cayuga County Court (Peter E. Corning, J.), entered January 31, 2003. The order denied the motion of defendant pursuant to CPL 440.10 to vacate his judgment of conviction.
KATY KARLOVITZ, MARCELLUS, FOR DEFENDANT-APPELLANT.
JAMES B. VARGASON, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., PINE, WISNER, SCUDDER, AND KEHOE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law, and the matter is remitted to Cayuga County Court for further proceedings in accordance with the following Memorandum: Defendant appeals from an order denying his CPL 440.10 motion without a hearing. We agree with defendant that County Court applied the wrong standards in denying his motion and that reversal is therefore required. In support of the motion, defendant contended that, because neither the court nor defense counsel advised him of the mandatory period of postrelease supervision, his plea of guilty to rape in the first degree (Penal Law former § 130.35 [1]) was not knowingly and intelligently entered and he was denied effective assistance of counsel under both the Federal and State Constitutions. The court rejected the contention of defendant that his plea was not knowingly and intelligently entered based on a harmless error analysis that is applicable to federal courts under the Federal Rules of Criminal Procedure ( see United States v. Good, 25 F.3d 218, 220 [4th Cir]; United States v. Saenz, 969 F.2d 294 [7th Cir]; United States v. Bachynsky, 934 F.2d 1349, 1360 [5th Cir], cert denied 502 U.S. 951). The harmless error analysis applicable in New York, however, "involves a determination as to whether the [court's] failure to inform the defendant of postrelease supervision affected his decision to plead guilty" ( People v. Melio, 304 A.D.2d 247, 251). "[B]efore a defendant may be allowed to upset a judgment of conviction based upon a plea, on the grounds that the plea was not knowingly and intelligently made because he was not properly advised of the consequences of his plea, he must show that he would not have entered his guilty plea if he had been properly advised" ( People v. Mason, 2 A.D.3d 272, 272-273; see People v. Catu, 2 A.D.3d 306; see also People v. Nixon, 21 N.Y.2d 338, 355).
The court rejected the contention of defendant that he was denied effective assistance of counsel solely because defendant failed to show in support of his motion that, had he gone to trial, he would have been acquitted or received a lesser sentence. However, the proper standard for determining defendant's claim under the Federal Constitution is whether "`there is a reasonable probability that, but for counsel's errors, [defendant] would not have pleaded guilty and would have insisted on going to trial'" ( People v. McDonald, 1 N.Y.3d 109, 115, quoting Hill v. Lockhart, 474 U.S. 52, 59), and the proper standard under the State Constitution is whether defendant received meaningful representation ( see id. at 114 n 2; People v. Ford, 86 N.Y.2d 397, 404).
We therefore reverse the order and remit the matter to County Court to determine defendant's motion in accordance with CPL 440.30 and the proper standards of review set forth herein. We note that, on remittal, the court must determine whether to conduct a hearing pursuant to CPL 440.30(5). The court has discretion to deny the motion without a hearing pursuant to CPL 440.30(4), e.g., if the allegations essential to support the motion are contradicted by the record and there is no reasonable possibility that they are true ( see 440.30 [4] [d]; People v. Mills, 194 A.D.2d 1016, lv denied 82 N.Y.2d 899; see also People v. Goncalves, 239 A.D.2d 924, lv denied 91 N.Y.2d 873).