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

46
KA 11-02407
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SHAWN B. WITKOP, DEFENDANT-APPELLANT.


ROBERT M. PUSATERI, CONFLICT DEFENDER, LOCKPORT (EDWARD P. PERLMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Niagara County Court (Sara S. Sperrazza, J.), dated July 25, 2011.
The order denied defendant’s amended motion pursuant to CPL 440.10.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from an order summarily denying,
inter alia, his amended pro se motion pursuant to CPL 440.10
(hereafter, motion) to vacate the judgment convicting him upon his
guilty plea of burglary in the first degree (Penal Law § 140.30 [2])
and manslaughter in the second degree (§ 125.15 [1]). We reject
defendant’s contention that County Court abused its discretion in
denying the motion without a hearing based on his allegations of
ineffective assistance of counsel. Defendant asserted in his
supporting affidavit that defense counsel’s investigation of the
charges against him was inadequate inasmuch as defense counsel failed
to discover statements by three alleged witnesses who “all stated that
[defendant] was on the premises to work,” and who “saw defendant at
work” on the victim’s home. Even assuming, arguendo, that those
alleged witnesses could establish that defendant did not enter the
victim’s home unlawfully, we conclude that such entry would not negate
the trespass element of burglary inasmuch as the indictment charged
only that defendant “remained unlawfully” in the home (see Penal Law §
140.30; see generally People v Jackson, 48 AD3d 891, 892, lv denied 10
NY3d 841). Defendant further asserted in his supporting affidavit
that defense counsel “intimidated” him into pleading guilty during two
off-the-record discussions at the plea proceeding. Defendant’s
unsupported, self-serving assertions, however, are contradicted by the
transcript of the plea proceeding, at which defendant indicated that
he agreed to plead guilty of his own free will and that no one had
                                 -2-                            46
                                                         KA 11-02407

coerced him to enter the plea (see CPL 440.30 [4] [d] [i]; People v
Sayles, 17 AD3d 924, 924-925, lv denied 5 NY3d 794). We note,
moreover, that defense counsel’s alleged off-the-record discussions
with defendant occurred after defendant’s above-described statements
during the plea colloquy, and thus there is no reasonable possibility
that any such intimidation affected defendant’s decision to plead
guilty (see CPL 440.30 [4] [d] [ii]). The record likewise does not
support defendant’s assertion that defense counsel was unprepared at
sentencing. We conclude, therefore, that the court properly denied
defendant’s motion without a hearing because, “given the nature of the
claimed ineffective assistance, the motion could be determined on the
trial record and defendant’s submissions on the motion” (People v
Satterfield, 66 NY2d 796, 799; see People v Jamison, 71 AD3d 1435,
1437, lv denied 14 NY3d 888).

     Defendant failed to address in his brief on appeal the remaining
grounds advanced in support of his motion, and we thus deem any
contentions with respect thereto abandoned (see generally People v
Dombrowski, 87 AD3d 1267, 1267-1268).




Entered:   February 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
