Opinion
111827
10-12-2023
The PEOPLE of the State of New York, Respondent, v. Kenneth BROWN, Appellant.
Craig A. Meyerson, Peru, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Craig A. Meyerson, Peru, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Aarons, McShan and Mackey, JJ.
MEMORANDUM AND ORDER
McShan, J. Appeal, by permission, from an order of the County Court of Schenectady County (Matthew J. Sypniewski, J.), entered September 11, 2019, which denied defendant's motion pursuant to CPL 440.10, to vacate the judgment convicting him of the crime of attempted criminal sale of a controlled substance in the third degree, without a hearing.
Following his arrest stemming from two separate controlled-buy operations in August 2015, defendant was indicted for criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts). In 2016, defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree and waived his right to appeal. Consistent with the plea agreement, defendant was sentenced, as a second felony offender with a prior violent felony, to 4½ years in prison to be followed by two years of postrelease supervision. In 2019, defendant moved to vacate the judgment of conviction pursuant to CPL 440.10 based on the ground of ineffective assistance of counsel. The People opposed the requested relief, and County Court denied defendant's motion without a hearing. Defendant appeals, by permission, from County Court's order.
Defendant contends that he was deprived of the effective assistance of counsel and that County Court erred in denying his CPL 440.10 motion without an evidentiary hearing. We disagree. "To demonstrate the existence of questions of fact requiring a hearing, a defendant is obliged to show that the nonrecord facts sought to be established are material and would entitle him or her to relief, and a court may deny a vacatur motion without a hearing if it is based on the defendant's self-serving claims that are contradicted by the record or unsupported by any other evidence" ( People v. James, 215 A.D.3d 1176, 1178, 187 N.Y.S.3d 858 [3d Dept. 2023] [internal quotation marks and citations omitted], lv denied 40 N.Y.3d 935, 194 N.Y.S.3d 750, 215 N.E.3d 1191 [2023] ; see People v. Gillespie, 205 A.D.3d 1212, 1216, 169 N.Y.S.3d 366 [3d Dept. 2022], lv denied 39 N.Y.3d 1072, 183 N.Y.S.3d 805, 204 N.E.3d 441 [2023] ; People v. Podeswa, 205 A.D.3d 1139, 1141, 167 N.Y.S.3d 640 [3d Dept. 2022], lv denied 38 N.Y.3d 1135, 172 N.Y.S.3d 857, 193 N.E.3d 522 [2022] ; see also CPL 440.30[4][d] ). "In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt upon the apparent effectiveness of counsel" ( People v. Burnell, 208 A.D.3d 1554, 1556, 175 N.Y.S.3d 371 [3d Dept. 2022] [internal quotation marks and citations omitted], lv denied 39 N.Y.3d 961, 179 N.Y.S.3d 162, 200 N.E.3d 107 [2022] ; see People v. Gonyea, 211 A.D.3d 1102, 1104, 178 N.Y.S.3d 814 [3d Dept. 2022], lv denied 39 N.Y.3d 1110, 186 N.Y.S.3d 847, 208 N.E.3d 75 [2023] ). "Whether a defendant is entitled to a hearing on a CPL 440.10 motion is a discretionary determination that is subject to appellate review for an abuse of discretion" ( People v. Spradlin, 192 A.D.3d 1270, 1273, 143 N.Y.S.3d 155 [3d Dept. 2021] [internal quotation marks, brackets, ellipsis and citation omitted]; see People v. Hardie, 211 A.D.3d 1418, 1420, 180 N.Y.S.3d 691 [3d Dept. 2023], lv denied 39 N.Y.3d 1111, 186 N.Y.S.3d 841, 208 N.E.3d 69 [2023] ).
Defendant avers that, while serving his sentence, he learned that his case file did not contain a laboratory test result of the drugs that formed the basis of the crimes that he was charged with. In this regard, he claims that, prior to pleading guilty, his trial attorney told him that she had viewed the laboratory test results, which was a misrepresentation because the report had, in fact, not been obtained because it did not exist. Defendant's contentions, however, are self-serving, belied by the record and unsubstantiated by any evidence or an affidavit from trial counsel (see CPL 440.30[4][d] ; People v. Hinds, 217 A.D.3d 1138, 1141, 191 N.Y.S.3d 533 [3d Dept. 2023]lv denied 40 N.Y.3d 951, 217 N.E.3d 693 [2023] ; People v. Vittengl, 203 A.D.3d 1390, 1393, 163 N.Y.S.3d 715 [3d Dept. 2022] ; People v. Robles, 172 A.D.3d 1780, 1781, 100 N.Y.S.3d 794 [3d Dept. 2019], lv denied 34 N.Y.3d 983, 113 N.Y.S.3d 635, 137 N.E.3d 5 [2019] ). Although defendant alleges that he had, by several letters, sought an affidavit from his trial counsel concerning his representation as well as his allegations related thereto, no copies of such letters were attached to, or accompanied, his motion (see People v. Hardie, 211 A.D.3d at 1421, 180 N.Y.S.3d 691 ; People v. Blanford, 179 A.D.3d 1388, 1395, 118 N.Y.S.3d 294 [3d Dept. 2020], lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 13, 148 N.E.3d 477 [2020] ). Moreover, even if defendant's allegations were true, defendant has not alleged that the existence of the laboratory report was material to his decision to plead guilty or that he had informed his trial counsel of such fact. Further, he does not allege that the at-issue substances were not, in fact, drugs. Considering that defendant expressed his satisfaction with trial counsel during the plea colloquy and that counsel negotiated and secured a very favorable plea that resulted in a sentence that was below the maximum potential sentence that he was exposed to on the higher counts contained in the indictment, it cannot be said that defendant was denied the effective assistance of counsel (see People v. Hardie, 211 A.D.3d at 1421, 180 N.Y.S.3d 691 ; People v. Crispell, 203 A.D.3d 1393, 1395, 163 N.Y.S.3d 708 [3d Dept. 2022] ; People v. Chaney, 160 A.D.3d 1281, 1285–1286, 76 N.Y.S.3d 257 [3d Dept. 2018], lv denied 31 N.Y.3d 1146, 83 N.Y.S.3d 427, 108 N.E.3d 501 [2018] ). Under these circumstances, and upon review of defendant's remaining allegations contained in his CPL article 440 motion, we find that County Court's denial of the motion without a hearing was not an abuse of discretion (see People v. Hardie, 211 A.D.3d at 1421, 180 N.Y.S.3d 691 ; People v. Ballard, 200 A.D.3d 1476, 1478–1479, 159 N.Y.S.3d 242 [3d Dept. 2021], lv denied 38 N.Y.3d 925, 164 N.Y.S.3d 6, 184 N.E.3d 827 [2022] ; People v. Durham, 195 A.D.3d 1318, 1321, 149 N.Y.S.3d 697 [3d Dept. 2021], lv denied 37 N.Y.3d 1160, 160 N.Y.S.3d 692, 181 N.E.3d 1120 [2022] ; People v. Betances, 179 A.D.3d 1225, 1227, 117 N.Y.S.3d 726 [3d Dept. 2020], lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 9, 148 N.E.3d 473 [2020] ). We have examined defendant's remaining contentions and have found them to be lacking merit.
To the extent that defendant's motion to vacate is predicated upon a claim of actual innocence, "we note that vacatur of a judgment of conviction on this ground is expressly conditioned upon the existence of a verdict of guilt after trial and defendant's plea of guilty therefore forecloses relief upon this ground" (People v. Lamb, 162 A.D.3d 1395, 1397, 80 N.Y.S.3d 520 [3d Dept. 2018] [internal quotation marks, emphasis, brackets and citations omitted], lv denied 32 N.Y.3d 1112, 91 N.Y.S.3d 364, 115 N.E.3d 636 [2018] ; accord People v. Hinds, 217 A.D.3d 1138, 1141, 191 N.Y.S.3d 533 [3d Dept. 2023], lv denied 40 N.Y.3d 951, 217 N.E.3d 693 [2023] ; see CPL 440.10[1][g] ; People v. Vittengl, 203 A.D.3d 1390, 1392, 163 N.Y.S.3d 715 [3d Dept. 2022] ).
The record establishes that field testing conducted after the controlled-buy operation confirmed the presence of a controlled substance which, as noted by County Court, was sufficient for the People to secure an indictment (see generally People v. Swamp, 84 N.Y.2d 725, 732, 622 N.Y.S.2d 472, 646 N.E.2d 774 [1995] ).
Garry, P.J., Egan Jr., Aarons and Mackey, JJ., concur.
ORDERED that the order is affirmed.