Opinion
2014-07-10
The PEOPLE of the State of New York, Respondent, v. Raul MORALES, Appellant.
David E. Woodin, Catskill, for appellant. Charles O. Bucca, Acting District Attorney, Catskill (Danielle D. McIntosh of counsel), for respondent.
David E. Woodin, Catskill, for appellant. Charles O. Bucca, Acting District Attorney, Catskill (Danielle D. McIntosh of counsel), for respondent.
Before: PETERS, P.J., GARRY, ROSE, EGAN JR. and CLARK, JJ.
GARRY, J.
Appeals (1) from a judgment of the County Court of Greene County (Pulver Jr., J.), rendered October 4, 2011, convicting defendant upon his plea of guilty of the crime of attempted rape in the first degree, and (2) by permission, from an order of said court, entered September 27, 2013, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Defendant was charged in two felony complaints with predatory sexual assault against a child for sexual intercourse and other acts perpetrated against two underage female victims. Defendant appeared before the grand jury and, under oath, acknowledged that he had discussed his appearance with his attorney and had elected to waive immunity and testify. He then signed a written waiver of immunity in the grand jury's presence and proceeded to testify. The grand jury handed up a nine-count indictment charging him with three counts of sexual abuse in the first degree and six counts of predatory sexual assault against a child. Following negotiations, defendant pleaded guilty to one count of attempted rape in the first degree in satisfaction of all charges, in exchange for a prison sentence of 10 years, followed by 10 years of postrelease supervision. As part of the plea agreement, he waived his right to appeal. County Court thereafter sentenced defendant to the agreed-upon term and further ordered him to pay fees and surcharges. Defendant appeals.
During the pendency of his appeal from the judgment of conviction, defendant moved pursuant to CPL 440.10 to vacate the judgment contending, among other things, that he was denied the effective assistance of counsel by virtue of counsel's failure to advise him of his defense of transactional immunity. County Court denied the motion without a hearing and defendant appeals, by permission, from that order.
We reject defendant's contention that there was any defect in his waiver of immunity, such that his testimony before the grand jury rendered him immune from prosecution for the underlying crimes. Defendant unequivocally acknowledged under oath before the grand jury that he had reviewed the waiver of immunity with counsel, had been advised as to the ramifications of signing it—including its effect on his right to immunity—and wished to waive immunity and testify. This acknowledgment, together with the written waiver that he signed in the grand jury's presence, fully satisfied the dictates of CPL 190.45 ( see People v. Heidelmark, 214 A.D.2d 767, 769, 624 N.Y.S.2d 656 [1995],lv. denied85 N.Y.2d 973, 629 N.Y.S.2d 733, 653 N.E.2d 629 [1995];People v. Young, 205 A.D.2d 908, 909–910, 613 N.Y.S.2d 469 [1994] ).
Turning to defendant's claim that he was deprived of the effective assistance of counsel, to the extent that such claim is alleged to have impacted the voluntariness of his plea, it is unpreserved for this Court's review, as the record does not indicate that defendant moved to withdraw his plea ( see People v. Long, 117 A.D.3d 1326, 1327, 986 N.Y.S.2d 670 [2014];People v. Griffin, 117 A.D.3d 1339, 986 N.Y.S.2d 683 [2014] ). In any event, defendant's claim rests primarily on the assertion that counsel should have moved to dismiss the indictment based upon defendant's alleged immunity, and a claim of ineffective assistance cannot be established by counsel's failure to make a motion “that has little or no chance of success” ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213[2005];see People v. Bahr, 96 A.D.3d 1165, 1167, 946 N.Y.S.2d 675 [2012],lv. denied19 N.Y.3d 1024, 953 N.Y.S.2d 557, 978 N.E.2d 109 [2012] ). The record shows that counsel filed appropriate pretrial motions and negotiated a favorable plea for defendant, who otherwise faced a possible sentence of six consecutive life terms in prison ( see People v. Sylvan, 108 A.D.3d 869, 870, 969 N.Y.S.2d 578 [2013],lv. denied22 N.Y.3d 1091, 981 N.Y.S.2d 676, 4 N.E.3d 978 [2014];People v. Leszczynski, 96 A.D.3d 1162, 1163, 948 N.Y.S.2d 125 [2012],lv. denied19 N.Y.3d 998, 951 N.Y.S.2d 474, 975 N.E.2d 920 [2012] ).
Defendant contends that his motion to vacate the judgment of conviction preserved this issue for our review within the context of his direct appeal. Where, as here, the propriety of a guilty plea is contested, and the issue may be reviewed by reference to the record, preservation of the issue for direct appeal is accomplished by motion to withdraw the plea ( seeCPL 220.60[3] ). By contrast, when the record is insufficient to support review, the vehicle for placing the issue before the trial court is through a CPL article 440 motion to vacate the judgment of conviction. To the extent that our prior decisions might be read to suggest that a motion to vacate the judgment of conviction is sufficient to preserve an issue for review on direct appeal, they should not be followed.
Defendant's contention that County Court erred in imposing a supplemental sex offender victim fee is foreclosed by his valid waiver of the right to appeal ( see People v. Frazier, 57 A.D.3d 1460, 1461, 869 N.Y.S.2d 826 [2008],lv. denied 12 N.Y.3d 783, 879 N.Y.S.2d 60, 906 N.E.2d 1094 [2009];People v. Lemos, 34 A.D.3d 343, 343, 824 N.Y.S.2d 289 [2006],lv. denied8 N.Y.3d 924, 834 N.Y.S.2d 514, 866 N.E.2d 460 [2007] ). Defendant's claim that his challenge survives the waiver in that it concerns the legality of his sentence is without merit, as the various fees and surcharges mandated by Penal Law § 60.35 are not a part of a defendant's sentence ( see People v. Guerrero, 12 N.Y.3d 45, 47–48, 876 N.Y.S.2d 687, 904 N.E.2d 823 [2009];People v. Ryan, 83 A.D.3d 1128, 1130, 920 N.Y.S.2d 806 [2011] ).
Finally, County Court's summary denial of defendant's motion to vacate the judgment of conviction pursuant to CPL 440.10 was proper, as the record on defendant's direct appeal was sufficient to review his contention that he received the ineffective assistance of counsel with respect to statutory immunity, and defendant presented no new evidence on his motion ( seeCPL 440.10[2][b]; People v. Kindred, 100 A.D.3d 1038, 1041, 952 N.Y.S.2d 832 [2012],lv. denied21 N.Y.3d 913, 966 N.Y.S.2d 364, 988 N.E.2d 893 [2013];People v. Trombley, 91 A.D.3d 1197, 1203, 937 N.Y.S.2d 665 [2012],lv. denied21 N.Y.3d 914, 966 N.Y.S.2d 366, 988 N.E.2d 895 [2013] ). Defendant's remaining contentions have been examined and found to be without merit.
ORDERED that the judgment and order are affirmed.
PETERS, P.J., ROSE, EGAN JR. and CLARK, JJ., concur.