People v. HunterPeople v. Hunter
Appeals (1) from a judgment of the Supreme Court (Milano, J.), rendered June 25, 2015 in Schenectady County, convicting defendant upon his plea of guilty of the crime of assault in the second degree, and (2) by permission, from an order of the County Court of Schenectady County (Sypniewski, J.), entered July 11, 2016, which denied defendant‘s motion pursuant to
In satisfaction of a seven-count indictment, defendant pleaded guilty to assault in the second degree and waived his right to appeal. Defendant submitted a motion to withdraw his guilty plea — drafted pro se and adopted by dеfense counsel — arguing that he had received ineffective assistance of counsel. Supremе Court denied the motion. Thereafter, Supreme Court sentenced defendant, a second felony offender, to the agreed-upon prison term of three years to be followed by five years of postrelease supervision. The plea agreement also contemplated an award of rеstitution for the victim‘s uncovered medical expenses and, as calculated at sentencing, that аward amounted to nearly $65,000. Defendant subsequently moved to vacate the judgment of conviction and set aside his sentence, which County Court denied without a hearing. Defendant appeals from the judgment of сonviction and, by permission, from the order denying his CPL article 440 motion.
Initially, inasmuch as the felony complaint was superseded by an indictment, defendant‘s jurisdictional challenge to the former is academic (see People v Layou, 159 AD3d 1413, 1413 [2018], lv denied 31 NY3d 1084 [2018]; People v Chianese, 41 AD3d 1168, 1169 [2007], lv denied 9 NY3d 1032 [2008]). Dеfendant‘s guilty plea and/or his unchallenged appeal waiver foreclose many of the remaining arguments on his direct appeal, including those involving the sufficiency of the evidence before the grand jury (see People v Greene, 171 AD3d 1407, 1408 [2019]; People v Wilburn, 158 AD3d 894, 894-895 [2018], lv denied 31 NY3d 1123 [2018]) and the partial denial of his suppression motion (see People v Feurtado, 172 AD3d 1620, 1621 [2019]; People v Danielson, 170 AD3d 1430, 1431 [2019], lv denied 33 NY3d 1030 [2019]). His constitutional challenges to
Defendant also takes issue with the restitution award in various respects. Hе first contends that his guilty plea was not knowingly, voluntarily and intelligently entered because he was not awarе when he pleaded guilty that restitution could exceed $15,000. Although this argument survives his appeal waiver, defendant failed to preserve the issue in his postallocution motions, and the narrow exception to the preservation requirement does not apply (see People v Miller, 126 AD3d 1233, 1234 [2015], lv denied 25 NY3d 1168 [2015]; People v Small, 82 AD3d 1451, 1452 [2011], lv denied 17 NY3d 801 [2011]). Defendant‘s challenge to the amount of thе restitution award similarly survives his appeal waiver (see People v Ortiz, 148 AD3d 1291, 1292 [2017]; People v Gardner, 129 AD3d 1386, 1388 [2015]), but is unpreserved given his failure to request a restitution heаring and his ultimate agreement to the amount awarded to the victim at sentencing (see People v Taft, 169 AD3d 1266, 1267 [2019], lv denied 33 NY3d 1074 [2019]; People v Perry, 168 AD3d 1287, 1288 [2019]; People v Miller, 126 AD3d at 1234).
Turning to the appeal from the order denying the CPL article 440 motion, we reject defendant‘s contention that County Court erred in denying the motion without a hearing. “To demonstrate the existence of questions of fact requiring a hearing, a defendant is obliged to show that the nonrecord facts sought to be established are material and would entitle him or her to relief” (People v Jones, 161 AD3d 1311, 1313 [2018] [internal quotation marks, brackets and citations omitted], lv denied 31 NY3d 1118 [2018]; see People v Satterfield, 66 NY2d 796, 799 [1985]).
With regard to defendant‘s claims of ineffective assistance involving both reсord and nonrecord facts, he testified before the grand jury in the presence of his first attorney, who аdvised defendant beforehand not to do so and accurately warned him of the “rather limited” assistanсe to which he would be entitled if he did, and defendant does not allege that counsel provided ineffеctive assistance by refusing requests for advice or providing bad advice during the ensuing examination (People v Sutton, 43 AD3d 133, 136 [2007], lv denied 9 NY3d 1010 [2007]; see
Defendant‘s remaining contentions have been considered and lack merit.
Egan Jr., J.P., Lynch, Aarons and Rumsey, JJ., concur.
ORDERED that the judgment and order are affirmed.