People v. Vargas
| Decision Date | 20 June 2019 |
| Docket Number | 109150 |
| Citation | 173 A.D.3d 1466,103 N.Y.S.3d 669 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Dimas VARGAS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
173 A.D.3d 1466
103 N.Y.S.3d 669
The PEOPLE of the State of New York, Respondent,
v.
Dimas VARGAS, Appellant.
109150
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: May 1, 2019
Decided and Entered: June 20, 2019
Thomas P. Theophilos, Buffalo, for appellant.
Letitia James, Attorney General, New York City (Nikki Kowalski of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Devine, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDER
Lynch, J.
Following an undercover investigation, which included controlled buys of cocaine from defendant and a coordinated traffic stop of defendant's vehicle that resulted in the seizure of a quantity of cocaine, defendant was charged in a 32–count indictment with conspiracy and various drug-related offenses (hereinafter the first indictment). While released on bail, defendant was charged in a five-count indictment with criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, reckless endangerment in the first
degree, assault in the third degree and perjury in the first degree stemming from a shooting incident (hereinafter the second indictment). Following a jury trial on the second indictment, defendant was convicted as charged.
Prior to sentencing, the People offered defendant a plea bargain regarding the first indictment, which would require him to plead guilty to two counts of criminal sale of a controlled substance in the third degree and one count of endangering the welfare of a child in full satisfaction of the first indictment in exchange for a prison term of 18 years, to be served concurrently with the sentences to be imposed for his convictions on the second indictment. Defendant rejected the plea offer and also waived his right to a jury trial on the first indictment. Following a nonjury trial, defendant was convicted of conspiracy in the fourth degree, 11 counts of criminal sale of a controlled substance in the third degree, 13 counts of criminal possession of a controlled
substance in the third degree and three counts of criminal possession of a controlled substance in the fourth degree. Defendant was sentenced on the second indictment, as a second felony offender, to a prison term of 14 years for his conviction of criminal possession of a weapon in the second degree, as well as to other lesser concurrent sentences, together with a consecutive prison term of 2 to 4 years for his conviction of perjury in the first degree, to be followed by five years of postrelease supervision. Regarding the first indictment, defendant was sentenced to prison terms of seven years each for two of his convictions of criminal sale of a controlled substance in the third degree, to be served consecutively to each other and to the sentences imposed on the second indictment, as well as to other lesser concurrent sentences. On appeal, defendant's judgments of conviction were affirmed by this Court ( 72 A.D.3d 1114, 1114–1121, 898 N.Y.S.2d 323 [2010], lv denied 15 N.Y.3d 758, 906 N.Y.S.2d 831, 933 N.E.2d 230 [2010] ; 60 A.D.3d 1236, 1240, 875 N.Y.S.2d 625 [2009], lv denied 13 N.Y.3d 750, 886 N.Y.S.2d 104, 914 N.E.2d 1022 [2009] ).
In July 2016, defendant moved, pursuant to CPL 440.10 and 440.20, to vacate the judgments of conviction and to set aside the sentences on the basis that his trial counsel was ineffective. Specifically, defendant maintains that counsel's erroneous advice that the People were required to produce the cocaine allegedly sold or possessed for each relevant count of the first indictment led him to reject the more favorable plea offer and waive his right to a jury trial. County Court denied the motion without a hearing. Defendant now appeals, with permission, from the order denying his postconviction motion.
We conclude that County Court properly denied defendant's
postconviction motion without a hearing. "On 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. Brandon , 133 A.D.3d 901, 903, 20 N.Y.S.3d 432 [2015] [internal quotation marks, brackets and citations omitted], lvs denied 27 N.Y.3d 992, 1000, 38 N.Y.S.3d 103, 110, 59 N.E.3d 1215, 1222 [2016]; see CPL 440.30[5] ; People v. Blackman , 166 A.D.3d 1321, 1322, 87 N.Y.S.3d 395 [2018] ). 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...
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