THE PEOPLE OF THE STATE OF NEW YORK v. JOSHUA ROUSE

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

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSHUA M. ROUSE, Appellant.

105293

Decided: March 26, 2015

Before:  Peters, P.J., Garry, Rose and Lynch, JJ. Robert A. Regan, Glens Falls, for appellant. Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.

MEMORANDUM AND ORDER

Calendar Date:  February 11, 2015

Appeals (1) from a judgment of the County Court of Warren County (Hall, J.), rendered August 15, 2012, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree, and (2) by permission, from an amended order of said court, entered March 18, 2013, which denied defendant's motion pursuant to CPL article 440 to vacate the judgment of conviction, without a hearing.

Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with criminal possession of a controlled substance in the third degree, waived his right to appeal and entered a guilty plea to that charge.   He was sentenced, as an admitted second felony offender, to a prison term of five years with three years of postrelease supervision.   Thereafter, defendant made a pro se motion, treated as a motion to vacate the judgment pursuant to CPL article 440, premised upon ineffective assistance of counsel.   County Court denied the motion without a hearing.   Defendant appeals from the judgment of conviction and, by permission of this Court, from the amended order denying his motion.

Defendant argues on appeal that his guilty plea was not knowing, voluntary and intelligent because, as relevant here, he was misinformed by counsel that the undischarged sentence of parole that he was serving at the time of this guilty plea would be served concurrently to the negotiated sentence imposed upon this plea.   While the plea colloquy did not address this issue, at sentencing, County Court informed defendant that, by operation of law, this sentence would run consecutively to any undischarged parole time (see Penal Law § 70.25[2–a] ).   Defendant asserted that he had been advised by counsel that his parole would be concurrent to the instant sentence and had relied on that advice in entering a guilty plea, and defense counsel made statements supporting defendant's representation.   Defendant did not, however, move to withdraw his plea.   Thereafter, defendant moved pursuant to CPL 440.10(1)(h), among other provisions, to vacate the judgment of conviction, submitting an affidavit and documentary evidence supporting his claim that he had been misinformed by counsel, which the People did not refute.1

Initially, we find that defendant's contentions “were properly raised in a CPL 440.10 motion because they rely on information outside the record of the plea proceedings and therefore could not have been raised on direct appeal” (People v. Reynoso, 88 AD3d 1162, 1163 [2011];  compare CPL 440.10[2] [c] ).  Moreover, as the People now concede, defendant's motion to vacate the judgment due to counsel's misinformation, which motion is premised upon defendant's sworn, unchallenged allegations and proof including the transcript of the plea proceedings, should have been granted (see CPL 440.30[3][a-c];  Penal Law § 70.25[2–a];  see also People v. Diallo, 113 AD3d 199, 202 [2013] ).   In light of this conclusion, defendant's remaining contentions need not be addressed.

Garry, Rose and Lynch, JJ., concur.

ORDERED that the judgment is affirmed.

ORDERED that the amended order is reversed, on the law, motion granted, judgment vacated, and matter remitted to the County Court of Warren County for further proceedings not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger

Clerk of the Court

FOOTNOTES

FN1. The People's opposition only addressed defendant's entitlement to relief under CPL 440.20 and did not factually refute his request for relief under CPL 440.10..  FN1. The People's opposition only addressed defendant's entitlement to relief under CPL 440.20 and did not factually refute his request for relief under CPL 440.10.

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