PEOPLE v. MICHEAUX (2024)

Judgment of resentence, Supreme Court, New York County (Arlene Goldberg, J.), rendered June 20, 2018, resentencing defendant to an aggregate term of 12 years, to be followed by five years of postrelease supervision, unanimously affirmed.  Order, same court (Kate Paek, J.), entered on or about June 5, 2023, denying defendant's motion pursuant to CPL 440.10 to vacate his conviction, unanimously affirmed.

Defendant's claims that his plea was involuntary and that his resentencing counsel was ineffective are procedurally barred, because he failed to raise the plea involuntariness claim before the resentencing court and failed to raise the ineffectiveness claim in his second CPL 440.10 motion, filed after resentencing (CPL 440.10[3][c];  see People v. Dominguez, 257 A.D.2d 511, 512, 685 N.Y.S.2d 14 [1st Dept. 1999], lv denied 93 N.Y.2d 872, 689 N.Y.S.2d 434, 711 N.E.2d 648 [1999]).  Moreover, the plea involuntariness claim is unpreserved (see People v. Conceicao, 26 N.Y.3d 375, 381–382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015]), and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits.

In any event, considering “all of the relevant circumstances surrounding [the] plea,” we find that the court did not abuse its discretion in denying the CPL 440.10 motion (People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] [internal quotation marks omitted];  see People v. Samuels, 143 A.D.3d 401, 402, 38 N.Y.S.3d 541 [1st Dept. 2016]).  Defendant's claim that he asked resentencing counsel to withdraw his plea was made solely by defendant and “is unsupported by any other affidavit or evidence” (CPL 440.30[4][d][i]).  Thus, under “all the other circumstances attending the case, there is no reasonable possibility” that defendant's “allegation is true” (CPL 440.30[4][d][ii]).  Moreover, the record does not show that defendant's plea was motivated by the misinformation he received about the minimum sentence (cf.  People v. Joseph, 191 A.D.3d 148, 150, 137 N.Y.S.3d 31 [1st Dept. 2020], lv denied 36 N.Y.3d 1121, 146 N.Y.S.3d 199, 169 N.E.3d 557 [2021]).

Because defendant ultimately received a sentence lower than the promised sentence, he had no basis to withdraw his plea (see People v. Breckner, 215 A.D.2d 229, 626 N.Y.S.2d 773 [1st Dept. 1995], lv denied 86 N.Y.2d 791, 632 N.Y.S.2d 504, 656 N.E.2d 603 [1995]).  Thus, defendant's claim that resentencing counsel was ineffective for failing to advise him that he could withdraw his plea is unavailing, because counsel could not “be ineffective for failing to advance an argument that has little or no chance of success” (People v. Williams, 35 N.Y.3d 24, 45, 124 N.Y.S.3d 593, 147 N.E.3d 1131 [2020]).

We perceive no basis for reducing the sentence.