PEOPLE v. VASQUEZ

Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Miguel VASQUEZ, Defendant-Appellant.

Decided: October 16, 2001

ROSENBERGER, J.P., NARDELLI, ELLERIN, LERNER and SAXE, JJ. James D. Gibbons, for Respondent. Susanna De LaPava, for Defendant-Appellant.

Judgments, Supreme Court, New York County (William Wetzel, J.), rendered December 3, 1996, convicting defendant, upon his pleas of guilty, of attempted robbery in the first degree (two counts) and sentencing him, as a second violent felony offender, to concurrent terms of 5 to 10 years, and order, same court and Justice, entered on or about December 21, 2000, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, unanimously affirmed.

 The record establishes that defendant received meaningful representation in connection with his highly advantageous guilty pleas (see, People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).   We note at the outset that defendant, a second violent felony offender, was indicted for first-degree robbery and attempted robbery, arising out of separate incidents, and received concurrent sentences of 5 to 10 years.

 There was no conflict of interest adversely affecting counsel's representation of defendant (see, Cuyler v. Sullivan, 446 U.S. 335, 348-350, 100 S.Ct. 1708, 64 L.Ed.2d 333).   Defendant's meritless complaint to the Departmental Disciplinary Committee did not create such a prejudicial conflict (see, People v. Davis, 226 A.D.2d 125, 640 N.Y.S.2d 53, lv. denied 88 N.Y.2d 1020, 651 N.Y.S.2d 19, 673 N.E.2d 1246;  Mathis v. Hood, 937 F.2d 790, 796).   Furthermore, no prejudicial conflict was created when defendant moved to withdraw his pleas and counsel made comments, in response to an inquiry from the court, in defense of his own performance (see, People v. Rodriguez, 251 A.D.2d 259, 675 N.Y.S.2d 527, lv. denied 92 N.Y.2d 904, 680 N.Y.S.2d 68, 702 N.E.2d 853).   The record establishes that the court's proper denial of defendant's plea withdrawal motion was completely independent of counsel's remarks (see, People v. Colon, 283 A.D.2d 193, 724 N.Y.S.2d 600).   Defendant was not deprived of meaningful representation as a result of counsel's failure to pursue defendant's pro se speedy trial motion addressed to the attempted robbery indictment.   Based on our examination of the record, we conclude that such motion would have been unavailing.

 The court properly denied defendant's CPL 440.10 motion without a hearing (see, People v. Satterfield, 66 N.Y.2d 796, 497 N.Y.S.2d 903, 488 N.E.2d 834) and without requiring the People to respond (see, People v. Orr, 240 A.D.2d 213, 659 N.Y.S.2d 1).   The motion raised the same issues that defendant raises on direct appeal, all of which are based on the record, and there were no factual issues requiring a hearing.