State of New York Supreme Court, Appellate Division Third Judicial Department
April 22, 2010
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
SEAN PAYTON, APPELLANT.
The opinion of the court was delivered by: McCarthy, J.
MEMORANDUM AND ORDER
Calendar Date: March 26, 2010
Before: Cardona, P.J., Spain, Malone Jr., McCarthy and Egan Jr., JJ.
Appeal, by permission, from an order of the County Court of Albany County (Breslin, J.), entered May 15, 2009, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of criminal possession of a controlled substance in the second degree and attempted criminal possession of a weapon in the third degree, without a hearing.
In satisfaction of a three-count indictment, defendant pleaded guilty in 2005 to criminal possession of a controlled substance in the second degree and attempted criminal possession of a weapon in the third degree and was sentenced as a second felony offender to an aggregate prison term of 71/2 years to life. At that time, defendant owed at least four years on a prior undischarged sentence. Defendant subsequently moved pursuant to CPL 440.10 to vacate the judgment of conviction, arguing that his plea was involuntary because he was not advised that the negotiated sentence would run consecutively to the prior undischarged sentence. County Court denied the motion and defendant now appeals to this Court by permission.
We affirm, albeit for reasons other than those expressed by County Court. Inasmuch as the argument now advanced could have been raised on direct appeal, CPL 440.10 (2) (c) mandates denial of the motion (see People v Swansbrough, 307 AD2d 389, 390 , lv denied 100 NY2d 624 ; see also People v Nicholson, 50 AD3d 1397, 1399 , lv denied 11 NY3d 834 ; People v Pignataro, 20 AD3d 892, 892-893 , lv denied 5 NY3d 855 ; People v Murray, 2 AD3d 1160, 1161 ). Accordingly, defendant's motion was properly denied.
Cardona, P.J., Spain, Malone Jr. and Egan Jr., JJ., concur.
ORDERED that the order is affirmed.
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