        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

693
KA 12-00892
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HANI ABUHAMRA, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered July 13, 2010. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree (two
counts), unlawful imprisonment in the second degree and criminal
contempt in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by directing that the definite
sentence imposed on count four of the indictment shall run
concurrently with the determinate sentences imposed on the remaining
counts of the indictment and as modified the judgment is affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him following a jury trial of, inter alia, two counts of
assault in the second degree (Penal Law § 120.05 [1], [2]) and one
count of criminal contempt in the first degree (§ 215.51 [b] [iv]).
In appeal No. 2, defendant appeals from an order denying his motion
seeking to vacate the judgment of conviction pursuant to CPL 440.10 on
the ground that he was denied effective assistance of counsel. As a
preliminary matter, we conclude that County Court properly denied
defendant’s CPL 440.10 motion without a hearing inasmuch as “trial
counsel, the only person who could have provided any material
information not already before the motion court, was deceased” (People
v Cotto, 259 AD2d 288, 289, lv denied 93 NY2d 1002). We also note
that defendant failed to support the motion with his own sworn
allegations (see CPL 440.30 [1] [a]), but instead submitted an unsworn
“affirmation.” Nevertheless, because the court did not make a finding
adverse to defendant on that ground, we decline to use it as a basis
for affirming the order in appeal No. 2 (see People v Santana, 101
AD3d 1664, 1664, lv denied 20 NY3d 1103; see generally People v
Concepcion, 17 NY3d 192, 194-196).
                                 -2-                           693
                                                         KA 12-00892

     We reject the contention of defendant, raised in each appeal,
that he was denied effective assistance of trial counsel. We agree
with the court’s determination on the CPL 440.10 motion that
defendant’s allegation that he withdrew his plea solely on the ground
that his attorney advised him that he would never be convicted at
trial or, if convicted, that he would not receive a state prison
sentence, is contradicted by the record (see CPL 440.30 [4] [d] [i]).
We also agree with the court’s determination that there is no
reasonable possibility that the allegation is true (see CPL 440.30 [4]
[d] [ii]). With respect to each of the remaining alleged instances of
ineffective assistance, we conclude that defendant failed to establish
the lack of a strategic basis for any of the alleged deficiencies (see
generally People v Rivera, 71 NY2d 705, 709). We therefore conclude
that the record establishes that defendant received meaningful
representation from trial counsel (see generally People v Baldi, 54
NY2d 137, 147).

     Defendant failed to preserve for our review his contention in
appeal No. 1 that the People did not promptly disclose certain
documents, which he contends constitute Brady material (see generally
CPL 470.05 [2]). In any event, defendant’s contention is without
merit inasmuch as the information was turned over as Rosario material
prior to jury selection and thus defendant had ample time to use the
information (see People v Gonzalez, 89 AD3d 1443, 1444, lv denied 19
NY3d 973, reconsideration denied 20 NY3d 932).

     We reject defendant’s contention in appeal No. 1 that the
sentence is unduly harsh and severe. We nevertheless conclude that
the sentence is illegal insofar as the court directed that the
definite sentence imposed on count four of the indictment shall run
consecutively to the determinate sentences imposed on counts one and
two (see Penal Law § 70.35; People v Still, 26 AD3d 816, 817, lv
denied 6 NY3d 853). Inasmuch as we cannot permit an illegal sentence
to stand (see People v Stubbs, 96 AD3d 1448, 1450, lv denied 19 NY3d
1001), we modify the judgment in appeal No. 1 accordingly (see Still,
26 AD3d at 817). Finally, we note that the certificate of conviction
erroneously states that defendant is obligated to pay restitution in
the amount of $1,268.81, rather than $1,261.87, and therefore it must
be amended to correct the clerical error (see generally People v
Saxton, 32 AD3d 1286, 1286-1287).




Entered:   June 28, 2013                       Frances E. Cafarell
                                               Clerk of the Court
