Calendar Date: February 21, 2017
Patnode, Rural Law Center of New York, Castleton (Cynthia
Feathers of counsel), for appellant, and appellant pro se.
E. Rain, District Attorney, Canton (Matthew L. Peabody of
counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Clark,
MEMORANDUM AND ORDER
(1) from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered May 5, 2014, convicting
defendant upon his plea of guilty of the crime of burglary in
the second degree, and (2) by permission, from an order of
said court, entered August 21, 2015, which denied
defendant's motion pursuant to CPL 440.10 to vacate the
judgment of conviction, without a hearing.
pleaded guilty to burglary in the second degree and
purportedly waived his right to appeal. County Court
sentenced him to seven years in prison, to be followed by
five years of postrelease supervision. Defendant thereafter
moved, pursuant to CPL 440.10, to vacate the judgment on the
basis of ineffective assistance of counsel. County Court
denied the motion without a hearing. Defendant now appeals
from the judgment of conviction and, with permission, from
the order denying his postconviction motion.
we agree with defendant that he did not validly waive the
right to appeal. County Court did not adequately explain the
separate and distinct nature of the right to appeal (see
People v Ritter, 124 A.D.3d 1133, 1134 ).
Moreover, although defendant also executed a written waiver,
County Court did not confirm as to whether defendant
understood the waiver (see People v Bradshaw, 18
N.Y.3d 257, 264-266 ; People v Lunan, 141
A.D.3d 947, 948 , lv denied 28 N.Y.3d 1125');">28 N.Y.3d 1125
; People v Jeffery, 135 A.D.3d 1235, 1236
; compare People v Griffin, 134 A.D.3d 1228,
1228-1229 , lv denied 27 N.Y.3d 1132');">27 N.Y.3d 1132 ).
As such, defendant's challenge to the severity of the
sentence imposed is properly before us for review.
Nonetheless, given defendant's extensive criminal
history, we find no extraordinary circumstances or abuse of
discretion that would require modification of the agreed-upon
sentence in the interest of justice (see People v
Rabideau, 130 A.D.3d 1094, 1095 ; People v
Kerwin, 117 A.D.3d 1097, 1098 ).
also challenges the denial of his motion to vacate the
judgment without a hearing, which was premised upon the claim
that his plea was not knowing and voluntary as the result of
ineffective assistance of counsel. His assertions that
counsel pressured him into pleading guilty and failed to
investigate whether defendant had entered the premises
unlawfully were properly rejected. Defendant affirmed during
the plea colloquy that he was not coerced into pleading
guilty, that he was entering his plea voluntarily and of his
own free choice and that he was satisfied with counsel's
representation. Further, the record reflects that counsel
made a pretrial challenge to the legal sufficiency of the
evidence supporting the indictment and secured a favorable
plea deal. The record also contains written statements from
the victims, which state that defendant did not have
permission to enter their residence. No hearing was required
regarding these issues "inasmuch as defendant's
arguments could properly be resolved based upon the contents
of the record" and defendant's proffered affidavit
in support "failed to demonstrate that the nonrecord
facts sought to be established are material and would entitle
him to relief" (People v Decker, 139 A.D.3d
1113, 1117  [internal quotation marks and citations
omitted], lv denied 28 N.Y.3d 928');">28 N.Y.3d 928 ; see
People v Oddy, 144 A.D.3d 1322, 1324 ).
reach a different conclusion regarding defendant's claim
in his CPL 440.10 motion that counsel's representation
was ineffective for failing to inform him that the required
element of criminal intent for burglary in the second degree
(see Penal Law § 140.25) could be negated by
the defense of intoxication. The victims' statements to
police include the observations that defendant "looked
high and his speech was slow" and that defendant
appeared "either drunk or stoned." Additionally,
his criminal record reflects a history of alcohol-related
arrests and convictions. Insofar as a defendant's
knowledge that the element of intent may be negated by the
potential defense of intoxication is essential to a knowing
and voluntary plea (see People v Doane, 145 A.D.3d
1088, 1089 ) and there is no indication that defendant
was aware of the intoxication defense and knowingly waived
his right to present such evidence, we are persuaded that
defendant has raised an issue sufficient to require a hearing
(see People v Davey, 91 A.D.3d 1033, 1034 ;
People v Thomson, 279 A.D.2d 644, 645 ).
Defendant's remaining claims have been reviewed and found
to be without merit.
McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur.
that the judgment is affirmed.
that the order is reversed, on the law, and matter remitted
to the County Court of St. Lawrence County for further
proceedings not inconsistent with this ...