Opinion
2014-08-20
The PEOPLE, etc., respondent, v. Ronald HAYES, appellant.
Jillian S. Harrington, New York, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Donald Berk of counsel), for respondent.
Jillian S. Harrington, New York, N.Y., for appellant.Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Donald Berk of counsel), for respondent.
Appeal by the defendant, by permission, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Ayres, J.), entered September 22, 2011, as denied, without a hearing, that branch of his motion which was pursuant to CPL 440.10 to vacate a judgment of the same court rendered September 6, 1991, convicting him, upon his plea of guilty, of robbery in the second degree, and imposing sentence.
ORDERED that the order is affirmed insofar as appealed from.
Contrary to the defendant's contention, sufficient facts appear on the record of the proceedings underlying the judgment of conviction to have permitted, upon appeal from such judgment, adequate review of the defendant's contention that his plea of guilty was not knowingly or intelligently entered ( see generally People v. Pettress, 109 A.D.3d 555, 555–556, 970 N.Y.S.2d 466;People v. Ortega, 61 A.D.3d 705, 706, 875 N.Y.S.2d 909;People v. Kegel, 55 A.D.3d 625, 625, 867 N.Y.S.2d 96;People v. Henderson, 44 A.D.3d 873, 874, 843 N.Y.S.2d 678;People v. Cisco, 208 A.D.2d 643, 643, 618 N.Y.S.2d 239). Accordingly, under the circumstances presented here, the defendant is barred from raising that contention on a motion to vacate the judgment ( see CPL 440.10[2][c]; see also People v. Cooks, 67 N.Y.2d 100, 104, 500 N.Y.S.2d 503, 491 N.E.2d 676;People v. Chiu Mei Lan Kwok, 51 A.D.3d 814, 815, 857 N.Y.S.2d 703).
The defendant failed to submit sworn allegations substantiating or tending to substantiate all essential facts necessary to support his claim that he did not receive the effective assistance of counsel during the sentencing proceeding ( see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674;People v. Hernandez, 22 N.Y.3d 972, 978 N.Y.S.2d 711, 1 N.E.3d 785). Under these circumstances, the Supreme Court providently exercised its discretion in denying, without a hearing, that branch of his motion which was to set aside the sentence ( see CPL 440.30[4][b]; People v. Ford, 46 N.Y.2d 1021, 1023, 416 N.Y.S.2d 536, 389 N.E.2d 1058;People v. Williams, 24 A.D.3d 575, 575, 805 N.Y.S.2d 295;People v. Wells, 265 A.D.2d 589, 696 N.Y.S.2d 893;People v. Lake, 213 A.D.2d 494, 495–496, 623 N.Y.S.2d 904).
The defendant's request for leave to prosecute a direct appeal from the judgment is not properly before this Court, as the proper procedure for making such a request is an application for a writ of error coram nobis, not an appeal from an order denying a motion made pursuant to CPL 440.10 ( see People v. Syville, 15 N.Y.3d 391, 400, 912 N.Y.S.2d 477, 938 N.E.2d 910;accord People v. Dawkins, 27 A.D.3d 576, 576, 813 N.Y.S.2d 102). MASTRO, J.P., RIVERA, BALKIN and MILLER, JJ., concur.