PEOPLE v. BUCHALLA (2003)

Appeal, by permission, from an order of the County Court of Cortland County (Di Stefano, J.), entered April 12, 2002, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crime of criminal sale of a controlled substance in the third degree, without a hearing.

Pursuant to a plea bargain, defendant pleaded guilty to one count of criminal sale of a controlled substance in the third degree in satisfaction of a 16-count indictment charging him with, inter alia, five counts of criminal sale of a controlled substance in the third degree involving five separate sales of cocaine on five separate occasions to the same State Police investigator.   Defendant waived his right to appeal and thereafter was sentenced, in accordance with such plea bargain, to an indeterminate term of imprisonment of 4 1/212 to 9 years.   Defendant thereafter moved pursuant to CPL article 440 to vacate his judgment of conviction upon the ground of ineffective assistance of counsel.   That motion was denied and this appeal ensued.

We affirm.   The crux of defendant's claim of ineffective assistance of counsel is that his assigned attorney advised him that he had no viable agency defense in view of the five separate sales asserted in the indictment and, further, that if defendant went to trial he was “almost certain to lose,” thereby subjecting himself to potential consecutive sentences.   As aptly observed by County Court, counsel's advise was realistic, appropriate and, given the extremely favorable plea bargain, hardly ineffective (see e.g. People v. Ford, 86 N.Y.2d 397, 398, 633 N.Y.S.2d 270, 657 N.E.2d 265).   We have considered defendant's remaining contentions and find them equally without merit.

ORDERED that the order is affirmed.

CREW III, J.

MERCURE, J.P., PETERS, SPAIN and LAHTINEN, JJ., concur.