People v. Hoffler

• Decision Date: 24 June 2010
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael HOFFLER, Appellant.
• Court: New York Supreme Court — Appellate Division

906 N.Y.S.2d 115
74 A.D.3d 1632

The PEOPLE of the State of New York, Respondent,
v.
Michael HOFFLER, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

June 24, 2010.

906 N.Y.S.2d 116

Ray Kelly, Albany, for appellant.

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.

Before: PETERS, J.P., ROSE, STEIN, McCARTHY and GARRY, JJ.

PETERS, J.P.

74 A.D.3d 1633

Appeal, by permission, from that part of an order of the County Court of Albany County (Herrick, J.), entered April 28, 2008, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of criminal sale of a controlled substance in the third degree (two counts), attempted criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fifth degree, without a hearing.

Defendant was charged in a five-count indictment with crimes arising from his sale and attempted sale of cocaine to two confidential informants on three dates in May 2003. Following a jury trial, he was convicted as charged and sentenced to an aggregate prison term of 17 to 34 years.¹ This Court affirmed the judgment on direct appeal ( 41 A.D.3d 891, 837 N.Y.S.2d 750 [2007], lv. denied 9 N.Y.3d 962, 848 N.Y.S.2d 30, 878 N.E.2d 614 [2007] ). Defendant, proceeding pro se, then moved to vacate the judgment of conviction pursuant to CPL 440.10, alleging, among other things, that he had been deprived of the effective assistance of counsel. County Court denied the motion without a hearing and defendant now appeals by permission of this Court. ²

906 N.Y.S.2d 117

Initially, we agree with defendant's contention that County Court erred in denying his motion pursuant to CPL 440.10(2)(c) on the ground that he had not demonstrated justification for failing to raise the issues on direct appeal. A court is required to summarily deny a motion to vacate a judgment where, "[a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred

74 A.D.3d 1634

owing to the defendant's ... unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him" (CPL 440.10[2][c]; see People v. Polanco, 52 A.D.3d 947, 947, 858 N.Y.S.2d 614 [2008], lv. denied 11 N.Y.3d 793, 866 N.Y.S.2d 619, 896 N.E.2d 105 [2008]; People v. Nicholson, 50 A.D.3d 1397, 1399, 856 N.Y.S.2d 290 [2008], lv. denied 11 N.Y.3d 834, 868 N.Y.S.2d 608, 897 N.E.2d 1092 [2008] ). Here, while most of defendant's allegations of ineffective assistance of counsel are based on matters in the record and could have been resolved-but were not raised-on direct appeal (41 A.D.3d at 891-892, 837 N.Y.S.2d 750), defendant was represented on direct appeal by the same attorney he retained to represent him during his trial. Under these circumstances, the court should not have denied defendant's motion pursuant to CPL 440.10(2)(c) because counsel's failure to raise his own ineffectiveness on direct appeal was not "unjustifiable" (CPL 440.10[2][c]; see People v. Harris, 109 A.D.2d 351, 360 n. 3, 364, 491 N.Y.S.2d 678 [1985], lv. denied 66 N.Y.2d 919, 498 N.Y.S.2d 1034, 489 N.E.2d 779 [1985]; see also People v. Reynolds, 309 A.D.2d 976, 977, 766 N.Y.S.2d 142 [2003] ).

Turning to the merits, we first address defendant's assertion that counsel improperly advised him of the consequences of rejecting a plea offer made by the People. Defendant averred that, prior to trial, counsel advised him that the People were offering a sentence of 5 1/2 to 11 years in exchange for his guilty plea to the crime of criminal sale of a controlled substance in the third degree. In response, defendant told counsel that he wanted to raise the defense of entrapment and felt that 5 1/2 to 11 years was too long. According to defendant, counsel replied that the People were offering the plea deal because they felt that their case was "very weak" as a result of the unavailability of Christopher Drabik, one of the confidential informants. ³ Counsel allegedly advised defendant that, if he went to trial, he would be facing "about 20 years" and told defendant that 20 years "would be tops you would get" and that "they can't give you anymore [ sic ] time on the B-felony." According to defendant, counsel also told him that, if he were convicted, County Court would run the counts concurrently and not consecutively. Based upon this information, defendant told counsel to reject the plea offer because he felt that he was better off standing trial. Defendant asserted...