PEOPLE v. PELLEGRINO (2018)

Appeal from an order of the Justice Court of the Town of New Windsor, Orange County (Richard W. Thorpe, J.), dated June 27, 2017. The order, after a hearing, granted defendant's motion pursuant to CPL 440.10 to vacate a judgment of that court rendered May 10, 2007 convicting him, upon his plea of guilty, of driving while ability impaired.

ORDERED that the order is reversed, on the law, defendant's motion to vacate the judgment of conviction is denied, and the judgment of conviction is reinstated.

On May 10, 2007, defendant pleaded guilty to one count of driving while ability impaired (Vehicle and Traffic Law § 1192 [1] ) in full satisfaction of all charges stemming from an incident that had occurred earlier that year. In 2017, he moved to vacate his conviction, pursuant to CPL 440.10 (e), alleging that he had been incapable of understanding or participating in the plea proceedings due to the grief resulting from his having lost his son a number of months earlier. The People opposed the motion, and the Justice Court set the matter down for a hearing (see CPL 440.30 [5] ). The People appeal from the order, after the hearing, granting defendant's motion.

On a CPL article 440 motion, “[t]he burden of proof is on the defendant and, at any hearing on the motion, the defendant must prove, by a preponderance of the evidence, every fact essential to support the motion” (People v. Tiger, 32 NY3d 91, 99 [2018]; see also CPL 440.30 [6] ). The hearing was defendant's opportunity to expand the record beyond what he had already submitted to the Justice Court (cf. People v. Hennessey, 111 AD3d 1166 [2013]; People v. Fixter, 79 AD2d 861 [1980] ) and demonstrate, with admissible evidence, that his “mental capacity was impaired” and that “this rendered him unable to enter a knowing, voluntary and intelligent guilty plea” (see Hennessey, 111 AD3d at 1168). In our opinion, the evidence at the hearing was insufficient to satisfy defendant's burden.

Accordingly, the order is reversed, defendant's motion to vacate the judgment of conviction is denied, and the judgment of conviction is reinstated.

TOLBERT, J.P., BRANDS and RUDERMAN, JJ., concur.