People v. Wimberly

• Decision Date: 07 July 2011
• Citation: 86 A.D.3d 651,2011 N.Y. Slip Op. 05820,926 N.Y.S.2d 718
• Parties: The PEOPLE of the State of New York, Respondent,v.Deryl WIMBERLY, Appellant.
• Court: New York Supreme Court — Appellate Division

86 A.D.3d 651

926 N.Y.S.2d 718

2011 N.Y. Slip Op. 05820

The PEOPLE of the State of New York, Respondent,

v.Deryl WIMBERLY, Appellant.

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

July 7, 2011.

James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.Before: PETERS, J.P., ROSE, LAHTINEN, MALONE JR. and McCARTHY, JJ.PETERS, J.P.

Appeal, by permission, from an order of the County Court of Albany County (Herrick, J.), entered February 23, 2010, which denied defendant's motion pursuant to CPL 440.10 and 440.20 to, among other things, vacate the judgment convicting him of the crime of attempted criminal sale of a controlled substance in the third degree, without a hearing.

In April 2008, defendant was indicted on two counts of criminal sale of a controlled substance in the third degree. In the course of plea negotiations, it came to light that defendant had a prior conviction for the federal crime of possession of a firearm by a prohibited person, and he was informed that, as a result, he could be sentenced, as a violent predicate offender, to a prison term of 15 years on each count of the indictment if found guilty. Subsequently, defendant pleaded guilty, as a second violent felony offender, to one count of attempted criminal sale of a controlled substance in the third degree in exchange for a negotiated sentence of four years in prison followed by two years of postrelease supervision. Thereafter, having failed to appear for sentencing as originally scheduled, defendant was sentenced to a prison term of six years, followed by three years of postrelease supervision. In January 2010, defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction or, in the alternative, to set aside the sentence pursuant to CPL 440.20. County Court denied defendant's motion without a hearing. He now appeals by permission.

We agree with defendant's contention that County Court erred in denying his motion without a hearing. Initially, we reject the People's assertion that defendant is precluded from seeking to vacate his judgment of conviction through a CPL 440.10 motion as a result of his failure to raise such grounds on direct appeal. Defendant's primary claim is that he was denied the effective assistance of counsel due to counsel's failure to realize and point out his true sentencing status. Because this claim is based on matters outside of the record, a motion pursuant to CPL 440.10 is the appropriate procedural vehicle to raise this challenge ( see People v. Mobley, 59 A.D.3d 741, 742, 873 N.Y.S.2d 736 [2009], lv. denied 12 N.Y.3d 856, 881 N.Y.S.2d 668, 909 N.E.2d 591 [2009]; People v. Obert, 1 A.D.3d 631, 632, 766 N.Y.S.2d 264 [2003], lv. denied 2 N.Y.3d 764, 778 N.Y.S.2d 782, 811 N.E.2d 44 [2004]; People v. Reynolds, 309 A.D.2d 976, 976, 766 N.Y.S.2d 142 [2003]; see generally People v. Pendelton, 81 A.D.3d 1037, 1038–1039, 916 N.Y.S.2d 297 [2011] ).

Here, the People and defense counsel conducted plea negotiations and entered into a plea agreement, and County Court rendered a sentence, under the assumption that, based upon his 2000 federal conviction, defendant was a violent predicate felon. However, the elements of 18 USC § 922(g)(8), the federal statute under which defendant was convicted, do not accord with any felony under New York law, and the People have failed to enumerate a state penal statute under which defendant could be considered a predicate felon ( see Penal Law § 70.06[1][b][i]; People v. Yancy, 86 N.Y.2d 239, 247, 630 N.Y.S.2d 985, 654 N.E.2d 1233 [1995]; People v. Muniz, 74 N.Y.2d 464, 467–468, 548 N.Y.S.2d 633, 547 N.E.2d 1160 [1989]; People v. Mosby, 78 A.D.3d 1371, 1374, 911 N.Y.S.2d 493 [2010], lv. denied 16 N.Y.3d 834, 921 N.Y.S.2d 198, 946 N.E.2d 186 [2011]; People v. Perron, 273 A.D.2d 549, 550, 710 N.Y.S.2d 134 [2000] ). Therefore, we find a question as to whether counsel provided inadequate legal assistance by failing to detect and correct the mistaken impression of defendant's sentencing status ( see People v. Thomson, 46 A.D.3d 939, 940, 847 N.Y.S.2d 682 [2007], lv. denied 9 N.Y.3d 1039, ...