Opinion
2011-11-10
The PEOPLE of the State of New York, Respondent,v.Gary A. GRIFFIN, Appellant.
Matthew J. Leonardo, Albany, for appellant.P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.
Matthew J. Leonardo, Albany, for appellant.P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.
STEIN, J.
Appeals (1) from a judgment of the County Court of Albany County (Breslin, J.), rendered April 22, 2010, convicting defendant
upon his plea of guilty of the crime of grand larceny in the fourth degree, and (2) by permission, from an order of said court, entered October 20, 2010, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Defendant was arrested and charged with one count of grand larceny in the fourth degree and three counts of criminal possession of a forged instrument in the second degree. After waiving his right to indictment by a grand jury, defendant pleaded guilty to a single count of grand larceny in the fourth degree. Defendant was thereafter sentenced to an agreed-upon term of 2 to 4 years in prison.
Prior to sentencing, defendant moved to withdraw his plea, asserting that his counsel was ineffective and that he was induced into pleading guilty by his mistaken belief that New York's persistent felony statute was valid —when, in fact, between the date of defendant's plea and his sentencing, a federal appellate court held it to be unconstitutional ( see Besser v. Walsh, 601 F.3d 163, 188 [2d Cir.2010], cert. denied ––– U.S. ––––, 131 S.Ct. 342, 178 L.Ed.2d 254 [2010] ). Defendant also asserted that he was innocent and that he had lied under oath during the plea colloquy. County Court denied defendant's motion and sentenced him in accordance with the plea agreement. Defendant thereafter moved pursuant to CPL 440.10(1)(h) to vacate the judgment of conviction. County Court denied this motion without a hearing. Defendant now appeals from the judgment of conviction and, with permission, from the order denying his CPL article 440 motion.
At the time that defendant entered his plea, he would have been subject to sentencing as a persistent felony offender.
We affirm. It is well settled that it is within the trial court's sound discretion whether to permit a defendant to withdraw a guilty plea, and no hearing is required unless a genuine question of fact as to its voluntariness is set forth on the record ( see People v. Strickland, 77 A.D.3d 1019, 1020, 909 N.Y.S.2d 172 [2010]; People v. Carmona, 66 A.D.3d 1240, 1241, 887 N.Y.S.2d 370 [2009], lv. denied 14 N.Y.3d 799, 899 N.Y.S.2d 133, 925 N.E.2d 937 [2010] ). Here, while the record reflects that at the first court appearance defendant expressed difficulty contacting his attorney, the matter was adjourned for two weeks in order to afford defendant the opportunity to speak with his attorney and with family members. The record of the plea colloquy that took place following that adjournment reveals that defendant articulated to County Court that he fully understood the rights he was giving up, that he had “a full chance to consult with” his attorney and that he was satisfied with the representation he received. He further admitted his guilt, allocuted to all of the elements and facts of the crime with which he was charged and stated that his decision to plead guilty was free and voluntary. Defendant's subsequent protestations of innocence were unsubstantiated and County Court was within its discretion to disregard such statements in denying defendant's motion ( see People v. Mitchell, 73 A.D.3d 1346, 1347, 901 N.Y.S.2d 405 [2010], lv. denied 15 N.Y.3d 922, 913 N.Y.S.2d 649, 939 N.E.2d 815 [2010]; People v. Davis, 250 A.D.2d 939, 940, 672 N.Y.S.2d 945 [1998] ).
Nor do we find merit to defendant's argument that his plea was the result of a mistake in the inducement. Notably, “ ‘[a]bsent misrepresentation or other
impermissible conduct by state agents, a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise’ ” ( People v. Trank, 58 A.D.3d 1076, 1077, 872 N.Y.S.2d 595 [2009], lv. denied 12 N.Y.3d 860, 881 N.Y.S.2d 672, 909 N.E.2d 595 [2009], quoting Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed.2d 747 [1970] ). Moreover, the law in New York as established by the Court of Appeals, to which this Court is bound, has continually upheld the constitutionality of the persistent felony offender sentencing scheme ( see People v. Quinones, 12 N.Y.3d 116, 122–131, 879 N.Y.S.2d 1, 906 N.E.2d 1033 [2009], cert. denied ––– U.S. ––––, 130 S.Ct. 104, 130 S.Ct. 104, 175 L.Ed.2d 31 [2009]; People v. Battease, 74 A.D.3d 1571, 1577, 904 N.Y.S.2d 241 [2010], lv. denied 15 N.Y.3d 849, 909 N.Y.S.2d 26, 935 N.E.2d 818 [2010] ). Inasmuch as nothing in the record suggests any misleading conduct by state agents or calls into question defendant's guilt or the voluntariness of his plea, we conclude that County Court did not abuse its discretion in denying defendant's motion to withdraw such plea without a hearing ( see People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 [2005]; People v. Carmona, 66 A.D.3d at 1241, 887 N.Y.S.2d 370; People v. First, 62 A.D.3d 1043, 1044, 880 N.Y.S.2d 195 [2009], lv. denied 12 N.Y.3d 915, 884 N.Y.S.2d 696, 912 N.E.2d 1077 [2009]; People v. Singletary, 51 A.D.3d 1334, 1334, 858 N.Y.S.2d 483 [2008], lv. denied 11 N.Y.3d 741, 864 N.Y.S.2d 400, 894 N.E.2d 664 [2008] ).
We also note that the ruling in Besser v. Walsh ( supra ) was subsequently vacated following rehearing en banc ( see Portalatin v. Graham, 624 F.3d 69, 73 [2d Cir.2010], cert. denied ––– U.S. ––––, 131 S.Ct. 1693, 179 L.Ed.2d 646 [2011] ), and is no longer the law in the Second Circuit.
We likewise find no error in County Court's denial of defendant's CPL article 440 motion to vacate the judgment of conviction without conducting a hearing as to the effectiveness of his counsel. Defendant argues that his counsel was ineffective for, among other things, misrepresenting to him that County Court had promised not to sentence him as a persistent felony offender if he entered a guilty plea. Significantly, the record reveals that there was no ambiguity relating to the sentence that defendant would receive in the event he accepted the plea agreement, and defendant was not sentenced as a persistent felony offender. Moreover, defendant failed to demonstrate that “the nonrecord facts sought to be established are material and would entitle him to relief” ( People v. Satterfield, 66 N.Y.2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834 [1985] ). Additionally, defendant's counsel secured a very favorable plea bargain inasmuch as defendant pleaded guilty to only one charge in satisfaction of a four-count indictment and avoided exposure to harsher sentencing as a persistent felony offender. Finally, nothing in the record otherwise casts doubt on counsel's effectiveness. Under these circumstances, defendant was afforded meaningful representation ( see People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995]; People v. Shurock, 83 A.D.3d 1342, 1343, 920 N.Y.S.2d 862 [2011]; People v. Singletary, 51 A.D.3d at 1335, 858 N.Y.S.2d 483), and County Court properly denied the motion based on written submissions ( see CPL 440.30; People v. Satterfield, 66 N.Y.2d at 799, 497 N.Y.S.2d 903, 488 N.E.2d 834;
People v. Morehouse, 5 A.D.3d 925, 926, 774 N.Y.S.2d 100 [2004], lv. denied 3 N.Y.3d 644, 782 N.Y.S.2d 416, 816 N.E.2d 206 [2004] ).
Defendant's remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.
ORDERED that the judgment and order are affirmed.
MERCURE, J.P., PETERS, GARRY and EGAN JR., JJ., concur.