People v. Wilcox

• Docket Number: s. 110309,112521
• Decision Date: 20 July 2023
• Citation: 2023 NY Slip Op 03887
• Parties: The People of the State of New York, Respondent, v. Kyle E. Wilcox, Appellant.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 03887

The People of the State of New York, Respondent, v. Kyle E. Wilcox, Appellant.

Nos. 110309, 112521

Supreme Court of New York, Third Department

July 20, 2023

Calendar Date: June 5, 2023

Eric K. Schillinger, Albany, for appellant, and appellant pro se.

Weeden A. Wetmore, District Attorney, Elmira (Nicholas S. Line of counsel), for respondent.

Before: Garry, P.J., Clark, Aarons and Ceresia, JJ.

Ceresia, J.

Appeals (1) from a judgment of the County Court of Chemung County (Richard W. Rich Jr., J.), rendered September 22, 2017 convicting defendant upon his plea of guilty of the crime of attempted rape in the second degree, and (2) by permission from an order of said court, entered September 1, 2020, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant was charged by indictment with rape in the second degree and endangering the welfare of a child based upon conduct with a child who was less than 15 years old. In satisfaction thereof, defendant pleaded guilty to the reduced charge of attempted rape in the second degree. County Court sentenced defendant to two years in prison, to be followed by 10 years of postrelease supervision. Defendant subsequently moved pro se to vacate the judgment of conviction pursuant to CPL 440.10, asserting that he was denied the effective assistance of counsel. County Court denied defendant's motion without a hearing. Defendant appeals from the judgment of conviction and, by permission, from the order denying his CPL 440.10 motion.

Initially, defendant's challenges to the voluntariness of his guilty plea are unpreserved for our review in view of his failure to make an appropriate postallocution motion to withdraw his plea prior to sentencing, despite ample time in which to do so (see People v Conceicao, 26 N.Y.3d 375, 381-382 [2015]; People v Peque, 22 N.Y.3d 168, 182-183 [2013], cert denied 574 U.S. 840 [2014]; People v Fish, 208 A.D.3d 1546, 1548 [3d Dept 2022]). Moreover, this case does not fall within the narrow exception to the preservation rule (see People v Clark, 209 A.D.3d 1063, 1064 [3d Dept 2022], lv denied 39 N.Y.3d 1140 [2023]; People v Rubert, 206 A.D.3d 1378, 1380 [3d Dept 2022], lv denied 39 N.Y.3d 942 [2022]). Defendant's claim on direct appeal of ineffective assistance of counsel, premised upon alleged deficiencies in defense counsel's motion practice, is forfeited by his guilty plea (see People v Jones, 210 A.D.3d 150, 152 [3d Dept 2022]; People v Rutigliano, 159 A.D.3d 1280, 1281 [3d Dept 2018], lv denied 31 N.Y.3d 1121 [2018]).

Defendant also contends that County Court erred in denying his CPL 440.10 motion without a hearing. "On a motion to vacate a judgment of conviction under CPL 440.10, 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. Furthermore, 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 Marte-Feliz, 192 A.D.3d 1397, 1397-1398 [3d Dept 2021] [internal quotation marks, brackets and citations omitted]; accord People v Podeswa, 205 A.D.3d 1139, 1140-1141 [3d Dept 2022], lv denied 38 N.Y.3d 1135 [2022]).

According to defendant, defense counsel was ineffective for assuring him that, if he pleaded guilty, he would not be sentenced to time in State prison, but instead would be incarcerated in county jail, and he avers that he would not have pleaded guilty without this assurance. This claim, however, is contradicted by the record. Pursuant to the plea agreement outlined at the outset of the colloquy, defendant's sentence was left to County Court's discretion, but it was agreed that the maximum...