PEOPLE v. HYSON (2008)

Appeals (1) from a judgment of the County Court of Albany County (Breslin, J.), rendered February 1, 2006, convicting defendant upon his plea of guilty of the crime of driving while intoxicated, and (2) by permission, from an order of said court, entered May 3, 2006, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In satisfaction of a four-count indictment, defendant pleaded guilty to driving while intoxicated as a felony and was sentenced to 1 to 3 years in prison.   Defendant's subsequent pro se CPL 440.10 motion to vacate the judgment of conviction was thereafter denied by County Court.   Defendant now appeals from the judgment of conviction and, by permission, from the order denying his CPL article 440 motion.

 Defendant initially argues that his guilty plea was involuntary because the colloquy failed to establish the elements of the crime and he entered the plea without fully understanding the sentencing aspect of the plea agreement.   Defendant's waiver of the right to appeal precludes his challenge to the sufficiency of the plea allocution (see People v. Jackson, 30 A.D.3d 824, 825, 817 N.Y.S.2d 731 [2006] ).   In any event, a recitation of the elements of the crime is not required where, as here, defendant “provided unequivocal affirmative responses to the court's questions, never made statements negating his guilt and indicated that he was entering the plea because he was, in fact, guilty” (People v. Williams, 35 A.D.3d 971, 972, 825 N.Y.S.2d 322 [2006], lv. denied 8 N.Y.3d 928, 834 N.Y.S.2d 519, 866 N.E.2d 465 [2007];  see People v. Anderson, 38 A.D.3d 1061, 1062, 831 N.Y.S.2d 582 [2007], lv. denied 8 N.Y.3d 981, 838 N.Y.S.2d 484, 869 N.E.2d 660).   Defendant further acknowledged, after conferring with counsel, that he was pleading guilty with the understanding as to the range of sentence he could receive, and he was, in fact, sentenced in accordance with the plea agreement.

 Defendant also contends, in the context of his CPL 440.10 motion, that he was denied the effective assistance of counsel with respect to all three of the attorneys who represented him in this matter.   As defendant's first attorney had not been retained by defendant to represent him after his arraignment, this attorney committed no impropriety by failing to notify defendant of an initial plea offer or of pending grand jury proceedings.   Notably, the preindictment plea offer was made before the People realized that one of the initial charges should have been a class D felony instead of a misdemeanor due to defendant's prior criminal record.   In addition, the People directly notified defendant of the first date set for grand jury proceedings and defendant's second attorney, who also attempted to notify defendant of said proceedings, was likewise told by defendant that he would again be seeking new counsel and to take no action on his behalf.   Moreover, the failure to notify the People of a defendant's desire to testify before the grand jury does not, standing alone, amount to ineffective assistance of counsel (see People v. Ballard, 13 A.D.3d 670, 672, 785 N.Y.S.2d 608 [2004], lv. denied 4 N.Y.3d 796, 795 N.Y.S.2d 171, 828 N.E.2d 87 [2005];  People v. Gibson, 2 A.D.3d 969, 973, 768 N.Y.S.2d 511 [2003], lv. denied 1 N.Y.3d 627, 766 N.Y.S.2d 724 [2004] ).

 The plea allocution also refutes defendant's contention that his third counsel provided ineffective assistance by not explaining any of his possible trial defenses and leading him to believe that he would definitely receive a split sentence of six months in jail and five years of probation rather than the prison term he did receive (see People v. Anderson, 38 A.D.3d at 1063, 831 N.Y.S.2d 582;  People v. Williams, 35 A.D.3d at 973, 825 N.Y.S.2d 322).   The record likewise contradicts defendant's contention that said counsel rejected a plea offer in August 2005 without his consent and in his absence.   As to defendant's claim that County Court should have conducted a hearing on his CPL article 440 motion, no such hearing was required since “the material submitted in support of the motion, as well as the record in the underlying proceeding, [were] sufficient to decide [it]” (People v. Robetoy, 48 A.D.3d 881, 883, 851 N.Y.S.2d 297 [2008];  see People v. Ellis, 53 A.D.3d 776, 777, 861 N.Y.S.2d 485 [2008] ).

Finally, given defendant's unchallenged waiver of the right to appeal, he is precluded from arguing that his sentence is harsh and excessive (see People v. Pickens, 45 A.D.3d 1187, 1188, 846 N.Y.S.2d 469 [2007], lvs. denied 10 N.Y.3d 769, 854 N.Y.S.2d 331, 883 N.E.2d 1266 [2008];  People v. Crudup, 45 A.D.3d 1111, 1112, 845 N.Y.S.2d 574 [2007] ).   We have reviewed defendant's remaining contentions and find them lacking in merit.

ORDERED that the judgment and order are affirmed.

CARPINELLO, J.

MERCURE, J.P., SPAIN, KANE and KAVANAGH, JJ., concur.