State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 6, 2016 107358 

107556

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

BENJAMIN DICKSON-EASON,

Appellant.

________________________________

Calendar Date: September 16, 2016

Before: Peters, P.J., McCarthy, Garry, Clark and Aarons, JJ.

__________

Catherine A. Barber, Albany, for appellant, and appellant

pro se.

P. David Soares, District Attorney, Albany (Michael C.

Wetmore of counsel), for respondent.

__________

Garry, J.

Appeals (1) from a judgment of the Supreme Court (Breslin,

J.), rendered January 15, 2015 in Albany County, convicting

defendant upon his plea of guilty of the crime of burglary in the

second degree, and (2) by permission, from an order of said

court, entered April 14, 2015 in Albany County, which denied

defendant's motion pursuant to CPL 440.10 to vacate the judgment

of conviction, without a hearing.

Following the denial of his motion to suppress statements

made to police, among other evidence, defendant pleaded guilty to

burglary in the second degree pursuant to a plea agreement that

included a waiver of appeal. The sentence was capped at 10 years
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to be followed by five years of postrelease supervision. Supreme

Court denied defendant's subsequent motion to withdraw his guilty

plea,1 following a hearing, and imposed a prison sentence of 10

years with five years of postrelease supervision, as a second

felony offender. Defendant thereafter moved pursuant to CPL

article 440 to vacate the judgment of conviction, which the court

denied in a written decision. Defendant now appeals from the

judgment of conviction and, with permission, from the order

denying his motion to vacate.

Initially, defendant's challenge to the denial of his

motion to suppress his statements to police is precluded by his

knowing, voluntary and intelligent waiver of appeal (see People v

Lopez, 6 NY3d 248, 256 [2006]; People v Kemp, 94 NY2d 831, 833

[1999]; People v Zippo, 136 AD3d 1222, 1222 [2016], lv denied 27

NY3d 1141 [2016]; People v Cooper, 126 AD3d 1046, 1047 [2015], lv

denied 26 NY3d 966 [2015]). During the plea allocution, an

appeal waiver was recited as a term of the agreement, defendant

was adequately advised as to its nature and consequences and that

it was separate and distinct from those rights automatically

forfeited by his guilty plea, and he reviewed it with counsel

before signing a written appeal waiver in court (see People v

Dobbs, 138 AD3d 1352, 1353 [2016], lv denied ___ NY3d ___ [Aug.

24, 2016]). The valid appeal waiver also forecloses defendant's

challenge to the severity of the sentence (see People v Lopez, 6

NY3d 248, 256 [2009]). 

Defendant also argues that his plea was involuntary due to

the ineffective assistance provided by former counsel prior to

and at the time of the plea, and that his motion to vacate his

plea should have been granted. At the hearing on that motion,

defendant testified that counsel misled and misinformed him

regarding his likely sentencing status, among other things, and

failed to disclose evidence to him, and he claimed that he was

innocent and only pleaded guilty to avoid a life sentence. 

Supreme Court discredited these allegations based upon, among

1 Substitute counsel was assigned to represent defendant on

this motion and thereafter.
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other factors, the transcript of the plea allocution and former

counsel's contrary hearing testimony. The record reveals that

defendant was adequately advised that persistent felony offender

sentencing was possible, not mandatory, if he were convicted.

Notably, "[i]n 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

Briggs, 138 AD3d 1355, 1356 [2016] [internal quotation marks and

citation omitted], lv denied ___ NY3d ___ [Aug. 2, 2016]) and the

decision "[w]hether to permit a defendant to withdraw his or her

plea of guilty is left to the sound discretion of [the trial

c]ourt, and withdrawal will generally not be permitted absent

some evidence of innocence, fraud or mistake in its inducement"

(People v Farnsworth, 140 AD3d 1538, 1539 [2016] [internal

quotation marks and citations omitted]). Deferring to the

court's credibility determinations (see People v Eggsware, 125

AD3d 1057, 1058 [2015], lv denied 25 NY3d 1162 [2015]), which are

supported by defendant's sworn statements during the plea

allocution and counsel's testimony, we are persuaded that

defendant's guilty plea was a "knowing, voluntary and intelligent

choice among alternative courses of action" (People v Conceicao,

26 NY3d 375, 382 [2015] [internal quotation marks and citation

omitted]; see People v Fiumefreddo, 82 NY2d 536, 543 [1993]). 

Further, in denying his motion to withdraw his plea, the court

was entitled to rely on the record (see People v Khan, 139 AD3d

1261, 1263 [2016], lvs denied ___ NY3d ___ [Aug. 15, 2016]),

which establishes that he received meaningful representation (see

People v Benevento, 91 NY2d 708, 712-716 [1998]; People v Khan,

139 AD3d at 1264) and fails to provide any basis for vacating the

plea. 

Finally, Supreme Court did not err in denying defendant's

motion to vacate the judgment of conviction. Most of the issues

raised on his motion concern claims that former counsel provided

ineffective assistance, which were raised (and rejected) or could

have been raised on his direct appeal, as "sufficient facts

appear on the record" to permit adequate review thereof and,

thus, these claims are not the proper subject of a motion
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pursuant to CPL article 440 (CPL 440.10 [2] [b]; see People v

Cuadrado, 9 NY3d 362, 364-365 [2007]; People v Anderson, 104 AD3d

968, 972 [2013], lv denied 21 NY3d 1016 [2013]). To the extent

that facts bearing on this issue do not appear on the record, the

court properly denied the motion because the facts could "have

readily been made to appear on the record" (CPL 440.10 [3] [a]),

that is, the claims could have been addressed upon former

counsel's motion to withdraw from the case or upon substitute

counsel's motion to withdraw defendant's plea, which was premised

upon ineffective assistance of former counsel. Further,

defendant's allegations are either contradicted by the record or

unsupported by any other evidence or affidavits, and he failed to

demonstrate any "reasonable probability" that they were true (CPL

440.30 [4] [d]). Thus, the motion was properly summarily denied

(see People v Lagas, 111 AD3d 1026, 1027 [2013], lv denied 16

NY3d 741 [2011]). Defendant's remaining claims, including those

raised in his pro se brief and reply brief, similarly lack merit.

Peters, P.J., McCarthy, Clark and Aarons, JJ., concur.

ORDERED that the judgment and order are affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court