People v. Stanley

• Decision Date: 17 December 2020
• Docket Number: 111868,109697
• Citation: 189 A.D.3d 1818,136 N.Y.S.3d 569
• Parties: The PEOPLE of the State of New York, Respondent, v. Edward STANLEY, Appellant.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1818

136 N.Y.S.3d 569

The PEOPLE of the State of New York, Respondent,

v.Edward STANLEY, Appellant.

109697

111868

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

Calendar Date: November 16, 2020

Decided and Entered: December 17, 2020

Todd G. Monahan, Schenectady, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Garry, P.J., Lynch, Clark, Mulvey and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Lynch, J.

Appeals (1) from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered June 28, 2017, convicting defendant upon his plea of guilty of the crime of burglary in the second degree, and (2) by permission, from an order of said court, entered September 11, 2019, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In satisfaction of the charges then pending against him, defendant waived indictment and agreed to plead guilty to a superior court information charging him with one count of burglary in the second degree with the understanding that he would be sentenced – as a second felony offender – to a prison term of 5½ years followed by five years of postrelease supervision. The plea agreement also required defendant to waive his right to appeal. Following defendant's guilty plea, County Court imposed the agreed-upon sentence.

Nearly two years later, defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction, contending that he had not been afforded the effective assistance of counsel. The People opposed defendant's application, and County Court denied the requested relief without a hearing. Defendant appeals from the judgment of conviction and, by permission, from the order denying his CPL article 440 motion.

We affirm. To the extent that defendant's ineffective assistance of counsel claim impacts upon the voluntariness of his plea, such claim survives his unchallenged appeal waiver but is unpreserved for our review in the absence of an appropriate post-allocution motion (see CPL 220.60[3] ; People v. Vilbrin, 183 A.D.3d 1012, 1013, 123 N.Y.S.3d 297 [2020], lv denied 35 N.Y.3d 1049, 127 N.Y.S.3d 861, 151 N.E.3d 543 [2020] ; People v. Koontz, 166 A.D.3d 1215, 1217–1218, 86 N.Y.S.3d 357 [2018], lv denied 32 N.Y.3d 1206, 99 N.Y.S.3d 192, 122 N.E.3d 1105 [2019] ). Further, "defendant did not make any statements during the plea colloquy that would trigger the narrow exception to the preservation rule" ( People v. Tamah, 133 A.D.3d 923, 924, 20 N.Y.S.3d 436 [2015] ; see People v. Weidenheimer, 181 A.D.3d 1096, 1097, 122 N.Y.S.3d 149 [2020] ). Were we to address this issue, we would find it to be lacking in merit, as nothing on the face of the plea colloquy calls into question counsel's effectiveness (see People v. Heier, 73 A.D.3d 1392, 1393, 900 N.Y.S.2d 921 [2010], lv denied 15 N.Y.3d 805, 908 N.Y.S.2d 165, 934 N.E.2d 899 [2010] ) or otherwise supports defendant's belated claim of coercion (cf. People v. Wyant, 47 A.D.3d 1068, 1069, 849 N.Y.S.2d 357 [2008], lv denied 10 N.Y.3d 873, 860 N.Y.S.2d 499, 890 N.E.2d 262 [2008] ).

Turning to defendant's CPL 440.10 motion, "[o]n a motion to vacate a judgment of conviction, a hearing is only required if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief" ( People v. Vargas, 173 A.D.3d 1466, 1468, 103 N.Y.S.3d 669 [2019] [internal quotation marks and citations omitted], lv denied 34 N.Y.3d 955, 110 N.Y.S.3d 635, 134 N.E.3d 634 [2019] ; see CPL 440.30[5] ). In this regard, a court may deny such a motion where, as here, "the necessary facts, which do not appear on the record on direct appeal, could ‘have readily been made to appear on the record’ " through the exercise of due diligence by the defendant ( People v. Howe, 150 A.D.3d 1321, 1323, 54 N.Y.S.3d 190 [2017], quoting CPL 440.10[3][a] ). Similarly, "[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. Vargas, 173 A.D.3d at 1468, 103 N.Y.S.3d 669 ) and "there is no reasonable possibility that such allegation[s are] true" ( CPL 440.30[4][d][ii] ; see People v. Betances, 179 A.D.3d 1225, 1226, 117 N.Y.S.3d 726 [2020], lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 9, 148 N.E.3d 473 [2020] ; People v. Dickson–Eason, 143 A.D.3d 1013, 1015, 38 N.Y.S.3d 637 [2016], lv denied, 28 N.Y.3d 1123, 51 N.Y.S.3d 20, 73 N.E.3d 360 [2016] ).

In support of his motion, defendant averred that, as he was entering his guilty plea, he asked counsel a question about the evidence in the case, at which point counsel allegedly informed defendant that there was no chain of custody documentation for DNA evidence linking him to the underlying burglary. Even setting aside the fact that the attorney to whom defendant now attributes such statement was not actually present in the courtroom with defendant at the time that defendant entered his plea, defendant's own affidavit demonstrates that he was well aware of this issue prior to sentencing, and the record makes clear that defendant made no effort to raise this issue before...