People v. Lagas

• Citation: 853 N.Y.S.2d 434,2008 NY Slip Op 02508,49 A.D.3d 1025
• Decision Date: 20 March 2008
• Docket Number: 100612.,101142.
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DAVID W. LAGAS, Also Known as BEAVER, Appellant.
• Court: New York Supreme Court Appellate Division

49 A.D.3d 1025

853 N.Y.S.2d 434

2008 NY Slip Op 02508

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DAVID W. LAGAS, Also Known as BEAVER, Appellant.

100612.

101142.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided March 20, 2008.

Appeals (1) from a judgment of the County Court of Columbia County (Czajka, J.), rendered September 6, 2006, convicting defendant upon his plea of guilty of the crimes of burglary in the third degree, criminal mischief in the second degree, criminal mischief in the fourth degree and petit larceny, and (2) by permission, from an order of said court, entered June 12, 2007, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Peters, J.P.

After waiving his right to court-appointed counsel, defendant pleaded guilty to the crimes of burglary in the third degree, criminal mischief in the second degree, criminal mischief in the fourth degree and petit larceny. Pursuant to the plea agreement, defendant was thereafter sentenced as a second felony offender to 2 to 4 years in prison for the convictions of burglary in the third degree and criminal mischief in the second degree and one year for the convictions of criminal mischief in the fourth degree and petit larceny, all to run concurrently, as well as restitution. A subsequent CPL 440.10 motion was denied without a hearing. Defendant now appeals both from the judgment of conviction and, by permission, from the order denying his CPL 440.10 motion.

Defendant initially contends that his guilty plea was obtained in violation of his right to counsel. We disagree. When a defendant waives his right to counsel, the trial court must conduct an inquiry to ensure the waiver is made knowingly, voluntarily and intelligently (see People v Arroyo, 98 NY2d 101, 103 [2002]; accord People v Maraj, 44 AD3d 1090, 1092 [2007]). Here, the record reveals that County Court conducted a searching inquiry, which included inquiries into defendant's age, education, his mental and physical condition, and whether he understood his right to counsel and was freely waiving it. We are therefore satisfied that County Court established that defendant's waiver of counsel was knowing, voluntary and intelligent (see People v McEachin, 29 AD3d 1221, 1222 [2006], lv denied 7 NY3d 903 [2006]; People v Whitted, 16 AD3d 905, 907-908 [2005], lv denied 4 NY3d 892 [2005]).^*

We also find defendant's contention that County Court erred in denying his CPL 440.10 motion without a hearing to be without merit. Here, as defendant's claim that his guilty plea was not knowingly, voluntarily and intelligently entered can be determined on the record and was reviewable on direct appeal, County Court properly denied the motion without a hearing (see CPL 440.10 [2] [b]; People v Lahon, 17 AD3d 778, 780 [2005], lv denied 5 NY3d 790 [2005]; People v Beverly, 5 AD3d 862, 865 [2004], lv denied 2 NY3d 796 [2004]). Furthermore, as defendant's claim that his right to counsel was violated in proceedings prior to his plea was based on facts that, with defendant's due diligence, could have been placed on the record enabling review on direct appeal, no hearing was required (see CPL 440.10 [3]; ...