Opinion
2014-04-10
The PEOPLE of the State of New York, Respondent, v. Bruce MAURO, Appellant.
Dershowitz, Eliger & Adelson, PC, New York City (Nathan Z. Dershowitz of counsel), for appellant. D. Holley Carnright, District Attorney, Kingston (Alison Russomano of counsel), for respondent.
Dershowitz, Eliger & Adelson, PC, New York City (Nathan Z. Dershowitz of counsel), for appellant. D. Holley Carnright, District Attorney, Kingston (Alison Russomano of counsel), for respondent.
Before: LAHTINEN, J.P., STEIN, GARRY and ROSE, JJ.
GARRY, J.
Appeal, by permission, from an order of the County Court of Ulster County (McGinty, J.), entered April 9, 2013, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crime of possessing an obscene sexual performance by a child, without a hearing.
Defendant waived indictment and pleaded guilty to a superior court information charging him with possessing an obscene sexual performance by a child. Defendant was thereafter sentenced, as agreed, to 10 years of probation. Five years later, defendant moved to vacate the judgment of conviction pursuant to CPL 440.10(1)(h), arguing that his conduct did not constitute the offense to which he pleaded guilty. County Court denied defendant's motion without a hearing. Defendant appeals, and we affirm.
Defendant contends that he merely viewed the illicit images on his computer and did not download, print or save them, and that he was unaware that they would be stored by his computer's cache function. Relying upon People v. Kent, 19 N.Y.3d 290, 947 N.Y.S.2d 798, 970 N.E.2d 833 [2012], defendant argues that, therefore, he cannot be guilty of the crime of possession of an obscene sexual performance by a child.
The Legislature subsequently amended the Penal Law ( see L. 2012, § 456).
“[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” ( Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed.2d 747 [1970] [internal citation omitted]; accord People v. Griffin, 89 A.D.3d 1235, 1237, 932 N.Y.S.2d 252 [2011];People v. Trank, 58 A.D.3d 1076, 1077, 872 N.Y.S.2d 595 [2009];lv. denied12 N.Y.3d 860, 881 N.Y.S.2d 672, 909 N.E.2d 595 [2009] ). Here, defendant's guilty plea was unequivocal, and his motion papers failed to present any evidence that tends to establish that his plea was less than a knowing, voluntary and intelligent choice among the alternatives available to him at that time ( see People v. Wilson, 101 A.D.3d 1248, 1249, 956 N.Y.S.2d 260 [2012] ). By his definitive admission of guilt, defendant thus waived his claim that the facts, as previously alleged by him, were not sufficient to establish the crime ( see People v. Cooper, 88 A.D.3d 1009, 1011, 931 N.Y.S.2d 346 [2011],lv. denied17 N.Y.3d 952, 936 N.Y.S.2d 78, 959 N.E.2d 1027 [2011];People v. Trank, 58 A.D.3d at 1077, 872 N.Y.S.2d 595). Accordingly, we find that County Court did not abuse its discretion in denying defendant's motion without a hearing.
ORDERED that the order is affirmed.
LAHTINEN, J.P., STEIN and ROSE, JJ., concur.