THE PEOPLE OF THE STATE OF NEW YORK v. MICHIEL BRANSTON (2026)

MEMORANDUM AND ORDER

Calendar Date:  June 1, 2026

Appeal, by permission, from an order of the County Court of Tompkins County (John Rowley, J.), entered February 23, 2024, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crime of attempted criminal sexual act in the first degree, without a hearing.

In March 2015, defendant was charged by indictment with criminal sexual act in the first degree, sexual abuse in the first degree and endangering the welfare of a child.  The charges stem from an incident where defendant was observed engaging in sexual conduct with the victim.  Police were then contacted and defendant was escorted to the City of Ithaca Police station, where he was read his Miranda rights.  While at the police station, defendant admitted to engaging in sexual conduct with the child and subsequently wrote a letter to County Court stating that “there is no need to go to trial” as he would “admit to the charges.”  Following a plea colloquy, defendant pleaded guilty to attempted criminal sexual act in the first degree in satisfaction of the indictment and, as a condition of the negotiated plea, he waived his right to appeal both orally and in writing.  In accordance with the plea agreement, County Court sentenced defendant to a prison term of 31/212 years, to be followed by 15 years of postrelease supervision.

Defendant thereafter filed a motion pursuant to CPL 440.10 to vacate the judgment of conviction asserting that he was denied the effective assistance of counsel based upon, among other things, his counsel's failure to inform him of his appellate rights and to move to suppress certain of his statements (see CPL 440.10[1][h] ).  County Court denied the motion, without a hearing.  Defendant appeals, by permission, the denial of his CPL 440.10 motion.

We affirm.  “On a motion to vacate a judgment of conviction, 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,” and “[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. Vargas, 173 AD3d 1466, 1468 [3d Dept 2019] [internal quotation marks and citations omitted, lv. denied 34 NY3d 955 [2019];  see CPL 440.30;  People v. Dorvil, 234 AD3d 1106, 1118 [3d Dept 2025], lv denied 44 NY3d 982 [2025] ).  “The summary denial of a CPL 440.10 motion is reviewed under an abuse of discretion standard” (People v. Bellamy, 187 AD3d 1421, 1422 [3d Dept 2020] [internal quotation marks, brackets and citations omitted], lv denied 36 NY3d 1049 [2021];  see People v. Mower, 242 AD3d 1377, 1379 [3d Dept 2025] ).

“In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt upon the apparent effectiveness of counsel” (People v. Burnell, 208 AD3d 1554, 1556 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 39 NY3d 961 [2022];  see People v. Roque, 234 AD3d 1050, 1053 [3d Dept 2025], lv denied 43 NY3d 946 [2025] ).  In this respect, “the defendant must demonstrate that there is a reasonable probability that, but for counsel's errors, he or she would not have pleaded guilty and would have insisted on going to trial, or that the outcome of the proceedings would have been different” (People v. Marcellus, 223 AD3d 1051, 1053 [3d Dept 2024] [internal quotation marks and citations omitted];  see People v. Phelps, 236 AD3d 1194, 1197 [3d Dept 2025] ).

Initially, in his CPL 440.10 motion, defendant contended that he received the ineffective assistance of counsel based upon counsel's alleged failure to properly advise him of his appellate rights and he thereby lost his opportunity to file a notice of appeal.  However, a CPL 440.10 motion is the improper vehicle to consider such contention as defendant was required, but failed, to file a coram nobis application when asserting “claims premised on the loss of the right to an appeal caused by deficient legal performance” (People v. Andrews, 23 NY3d 605, 610 [2014];  see People v. Rosario, 26 NY3d 597, 603–604 [2015];  People v. Bates, 35 A.D.2d 887, 887 [3d Dept 1970] ).  Similarly, to the extent that defendant challenges the sufficiency of the plea allocution, inasmuch as sufficient facts concerning County Court's purported failure in this regard appear on the record, such contention “can be reviewed only by direct appeal” (People v. Stewart, 16 NY3d 839, 840–841 [2011] [internal quotation marks and citation omitted];  see People v. Hill, 220 A.D.2d 905, 906 [3d Dept 1995] ).

We further reject defendant's contention that he was deprived of the effective assistance of counsel on account of defense counsel's failure to move to suppress certain statements.  Initially, “[a] counsel's failure to make a particular pretrial motion generally does not, by itself, establish ineffective assistance of counsel” (People v. Valentin, 173 AD3d 1436, 1440 [3d Dept 2019] [internal quotation marks and citation omitted], lv denied 34 NY3d 954 [2019];  see People v. Wilson, 164 AD3d 1012, 1019 [3d Dept 2018] ).  Here, defendant asserts that counsel should have sought the suppression of his statements that were made during a police interview prior to being advised of his Miranda rights.  The record reflects, however, that on this issue defendant's counsel had reviewed the relevant interrogation recordings and determined that “there was no credible motion to be made to suppress [defendant's] statements.”  Indeed, the record reveals that defendant's statements prior to being Mirandized merely pertained to his living arrangements and those of the victim generally (see People v. Wortham, 37 NY3d 407, 413 [2021] ).  Accordingly, defendant was not denied effective assistance “merely because counsel [did] not make a motion or argument that has little or no chance of success” (People v. Carota, 235 AD3d 1069, 1072 [3d Dept 2025] [internal quotation marks and citation omitted], lv denied 43 NY3d 962 [2025];  see People v. Prusinski, 242 AD3d 1427, 1432 [3d Dept 2025], lv. denied 45 NY3d 938 [2026];  People v. Jones, 161 AD3d 1311, 1314 [3d Dept 2018], lv denied 31 NY3d 1118 [2018] ).  We further note that defendant received a favorable plea deal that afforded him a sentence far below the maximum possible under the indictment, and nothing in the record otherwise suggests that defendant did not receive meaningful representation (see People v. Johnson, 221 AD3d 1172, 1177 [3d Dept 2023], lv denied 41 NY3d 965 [2024];  People v. Clark, 209 AD3d 1063, 1066 [3d Dept 2022], lv denied 39 NY3d 1140 [2023] ).  In view of the foregoing, we discern no abuse of discretion in the denial of defendant's motion without a hearing (see People v. Clay, 245 AD3d 994, 997 [3d Dept 2026], lv denied 45 NY3d 935 [2026];  People v. Kadar, 244 AD3d 1669, 1674 [3d Dept 2025];  People v. Carota, 235 AD3d at 1072;  People v. Bailey, 232 AD3d 1031, 1038 [3d Dept 2024], lv denied 43 NY3d 929 [2025] ).

Clark, J.P., Fisher, Powers and Corcoran, JJ., concur.

ORDERED that the order is affirmed.

Mackey, J.