                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:   March 26, 2015                  105293
                                                       105728
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JOSHUA M. ROUSE,
                    Appellant.
________________________________


Calendar Date:   February 11, 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.

                             __________


Peters, P.J.

      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
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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


    1
        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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                                                   105728

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
