Calendar Date: November 16, 2017
G. Monahan, Schenectady, for appellant.
P. McCoski, District Attorney, Fonda (Pamela A. Ladd of
counsel), for respondent.
Before: McCarthy, J.P., Lynch, Devine, Mulvey and Aarons, JJ.
MEMORANDUM AND ORDER
(1) from a judgment of the County Court of Montgomery County
(Catena, J.), rendered August 27, 2014, convicting defendant
upon his plea of guilty of the crimes of robbery in the first
degree and robbery in the second degree, and (2) by
permission, from an order of said court, entered August 16,
2016, which denied defendant's motion pursuant to CPL
440.10 to vacate the judgment of conviction, without a
pleaded guilty to an indictment charging him with robbery in
the first degree and robbery in the second degree without any
promise being made as to the sentence. Thereafter, County
Court imposed an aggregate sentence of seven years in prison
to be followed by five years of postrelease supervision.
subsequently moved pursuant to CPL 440.10 to vacate the
judgment of conviction on the ground that, among others, he
received ineffective assistance of counsel. County Court
denied the motion without a hearing. Defendant appeals from
the judgment of conviction and, by permission, from the order
denying his CPL 440.10 motion.
support of both appeals, defendant argues that he was denied
the effective assistance of counsel, which resulted in his
entry of a guilty plea that was not knowing, voluntary or
intelligent. Insofar as this claim impacts the voluntariness
of defendant's guilty plea, it has not been preserved for
our review on his direct appeal as the record does not
disclose that he made an appropriate postallocution motion to
withdraw his plea (see People v Darrell, 145 A.D.3d
1316, 1317 , lv denied 29 N.Y.3d 1125');">29 N.Y.3d 1125 ;
People v Tamah, 133 A.D.3d 923, 924 ).
Moreover, the narrow exception to the preservation rule is
inapplicable as defendant did not make any statements during
the plea colloquy that cast doubt upon his guilt (see
People v Darrell, 145 A.D.3d at 1317; People v
Oddy, 144 A.D.3d 1322, 1323-1324 , lv
denied 29 N.Y.3d 1131');">29 N.Y.3d 1131 ).
to his CPL 440.10 motion, defendant contends that County
Court erred in denying it without conducting a hearing on his
claim of ineffective assistance of counsel. We note that
"a hearing on a CPL 440.10 motion is not always
necessary, [but] a hearing is required where the defendant
bases the motion upon nonrecord facts that are material and,
if established, would entitle the defendant to relief"
(People v Monteiro, 149 A.D.3d 1155, 1156 ;
see People v Satterfield, 66 N.Y.2d 796, 799 ;
People v Stahl, 141 A.D.3d 962, 966 , lv
denied 28 N.Y.3d 1127');">28 N.Y.3d 1127 , cert denied ___
U.S. ___, 138 S.Ct. 222');">138 S.Ct. 222 . Here, defendant asserts that
his counsel was ineffective because, among other things, he
(1) had a conflict of interest arising from his
representation of a defendant in another criminal matter in
which defendant was the victim, (2) failed to adequately
communicate with defendant, (3) failed to negotiate a more
favorable plea offer, (4) failed to secure the services of a
Spanish interpreter, and (5) pressured defendant into
accepting the final plea offer.
the claimed conflict of interest involved an unrelated
criminal matter that was resolved prior to the entry of
defendant's guilty plea, and defendant offers nothing to
show "that 'the conduct of his defense was in fact
affected by the operation of the [alleged] conflict of
interest, ' or that the conflict 'operated on'
the representation" (People v Ortiz, 76 N.Y.2d
652, 657 , quoting People v Alicea, 61 N.Y.2d
23, 31 ; accord People v Sousa, 23 A.D.3d 697,
699 , lv denied 6 N.Y.3d 781');">6 N.Y.3d 781 ; see
People v Tomasky, 36 A.D.3d 1025, 1027 , lv
denied 8 N.Y.3d 927');">8 N.Y.3d 927 ). Defendant's remaining
allegations are conclusory in nature, are not corroborated by
the documentation submitted in support of his motion and are,
to some extent, contradicted by the record. Significantly,
the record discloses that defendant, against the
well-reasoned advice of counsel, rejected other more
favorable plea offers before eventually pleading guilty to
the indictment, that his counsel conferred with him and
advocated on his behalf during numerous court appearances,
and that defendant expressed to County Court his satisfaction
with his counsel's representation and that he was freely
and voluntarily entering his guilty plea. Furthermore, there
is no indication that defendant ever requested the services
of a Spanish interpreter or was unable to understand the
proceedings or his counsel's recommendations due to a
language barrier. In view of the foregoing, we conclude that
County Court did not err in denying defendant's CPL
440.10 motion without first conducting an evidentiary hearing
(see People v Decker, 139 A.D.3d 1113, 1117 ,
lv denied 28 N.Y.3d 928');">28 N.Y.3d 928 ; People v
Griffin, 89 A.D.3d 1235, 1237 ; compare People
v Rapp, 133 A.D.3d 979, 980-981 ; People v
Deyo, 82 A.D.3d 1503, 1504-1506 , lv
denied 17 N.Y.3d 815');">17 N.Y.3d 815 ).
McCarthy, J.P., Lynch, Mulvey and ...