Opinion
14146, 10847.
Decided and Entered: May 6, 2004.
Appeals (1) from a judgment of the County Court of Chemung County (Buckley, J.), rendered May 18, 1998, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree, and (2) by permission, from an order of said court, entered January 18, 2001, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Kathryn M. Barber, Albany, for appellant.
John R. Trice, District Attorney, Elmira (Damian M. Sonsire of counsel), for respondent.
Before: Crew III, J.P., Spain, Carpinello, Lahtinen and Kane, JJ.
MEMORANDUM AND ORDER
After being discovered with a single-edged razor blade concealed on his person, defendant, an inmate at the Elmira Correctional Facility in Chemung County, served a written notice on the Chemung County District Attorney's office of his intent to testify before the grand jury regarding the matter. On October 8, 1997, defendant was assigned counsel and informed that the grand jury proceedings were going to be held the following day. Although present at the courthouse the next day, defendant did not testify and was indicted on one count of promoting prison contraband in the first degree.
At his arraignment, defendant argued that he was prevented from testifying before the grand jury by defense counsel's failure to procure a letter from defendant's disciplinary file prior to the grand jury proceedings, a letter which defendant now claims was critical to his testimony and his only defense. After assigning new defense counsel, County Court considered defendant's pro se motion to dismiss the indictment premised on the alleged insufficiency of the evidence before the grand jury and the claims that he was not provided adequate grand jury notice and was denied the effective assistance of counsel. The court reviewed the minutes of the grand jury proceedings and denied defendant's motion. Defendant then entered a plea of guilty to the crime of attempted promoting prison contraband in the first degree and was sentenced as a second felony offender to 1½ to 3 years in prison, to be served consecutive to his existing sentence. Defendant thereafter unsuccessfully moved pursuant to CPL 440.10 to vacate the judgment of conviction upon the grounds that he was denied the effective assistance of counsel and due process. Defendant appeals from the judgment of conviction and, by permission of this Court, from the order denying his CPL 440.10 motion.
First, defendant argues that he was denied the effective assistance of counsel in light of defense counsel's failure to obtain the requested letter prior to the grand jury proceedings. To the extent that defendant's argument can be construed to be that the alleged failure undermined the voluntariness of his guilty plea, it survives that plea (see People v. Thomas, 2 A.D.3d 982, 983, lv denied 1 N.Y.3d 602; People v. White, 300 A.D.2d 830, 832, lvs denied 99 N.Y.2d 586, 633). We reject that contention, finding that defendant entered a knowing, voluntary and advantageous guilty plea after County Court entertained and denied his motion to dismiss the indictment, which was based in part on counsel's failure to procure the letter. Defendant has failed to include the letter in the record, describe its content or otherwise demonstrate the likely impact it would have had on his indictment and, accordingly, has not met his burden of showing that this single alleged error was significant enough to deprive him of meaningful representation in a manner which would cast any doubt on the voluntariness of his plea (see People v. Kagonyera, 304 A.D.2d 984, 985, lv denied 1 N.Y.3d 574; People v. Trimm, 295 A.D.2d 640, 642, lv denied 98 N.Y.2d 732; People v. Mingues, 256 A.D.2d 657, 657, lv denied 93 N.Y.2d 974; see also People v. Plaisted, 2 A.D.3d 906, 909).
Defendant's remaining claims of preplea error were forfeited when he entered his guilty plea; specifically, he forfeited any claims that he was provided inadequate notice of the grand jury proceedings (see People v. Harris, 293 A.D.2d 818, 819,lv denied 98 N.Y.2d 676; see also People v. Hansen, 95 N.Y.2d 227, 230) and deprived of due process by alleged errors/misconduct in the police investigation of defendant's crime (see People v. Trimm, supra at 641; People v. Torres, 257 A.D.2d 772, 773, lv denied 93 N.Y.2d 903; People v. Fudge, 58 A.D.2d 952, 952-953). In any event, we have considered these contentions and find that they lack merit.
Finally, in light of the nature of the crime charged, defendant's criminal history and the lack of any extraordinary circumstances warranting our intervention, we find no reason to disturb the sentence — imposed by County Court pursuant to the plea agreement and less than the maximum permissible sentence — as harsh or excessive (see People v. Goldwire, 301 A.D.2d 677, 678; People v. Riley, 298 A.D.2d 716, 716, lv denied 99 N.Y.2d 563).
Crew III, J.P., Carpinello, Lahtinen and Kane, JJ., concur.
ORDERED that the judgment and order are affirmed.