                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:   July 10, 2014                   104943
                                                       106121
________________________________

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

RAUL MORALES,
                    Appellant.
________________________________


Calendar Date:   June 3, 2014

Before:   Peters, P.J., Garry, Rose, Egan Jr. and Clark, JJ.

                             __________


     David E. Woodin, Catskill, for appellant.

      Charles O. Bucca, Acting District Attorney, Catskill
(Danielle D. McIntosh of counsel), for respondent.

                             __________


Garry, J.

      Appeals (1) from a judgment of the County Court of Greene
County (Pulver Jr., J.), rendered October 4, 2011, convicting
defendant upon his plea of guilty of the crime of attempted rape
in the first degree, and (2) by permission, from an order of said
court, entered September 27, 2013, which denied defendant's
motion pursuant to CPL 440.10 to vacate the judgment of
conviction, without a hearing.

      Defendant was charged in two felony complaints with
predatory sexual assault against a child for sexual intercourse
and other acts perpetrated against two underage female victims.
Defendant appeared before the grand jury and, under oath,
acknowledged that he had discussed his appearance with his
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attorney and had elected to waive immunity and testify. He then
signed a written waiver of immunity in the grand jury's presence
and proceeded to testify. The grand jury handed up a nine-count
indictment charging him with three counts of sexual abuse in the
first degree and six counts of predatory sexual assault against a
child. Following negotiations, defendant pleaded guilty to one
count of attempted rape in the first degree in satisfaction of
all charges, in exchange for a prison sentence of 10 years,
followed by 10 years of postrelease supervision. As part of the
plea agreement, he waived his right to appeal. County Court
thereafter sentenced defendant to the agreed-upon term and
further ordered him to pay fees and surcharges. Defendant
appeals.

      During the pendency of his appeal from the judgment of
conviction, defendant moved pursuant to CPL 440.10 to vacate the
judgment contending, among other things, that he was denied the
effective assistance of counsel by virtue of counsel's failure to
advise him of his defense of transactional immunity. County
Court denied the motion without a hearing and defendant appeals,
by permission, from that order.

      We reject defendant's contention that there was any defect
in his waiver of immunity, such that his testimony before the
grand jury rendered him immune from prosecution for the
underlying crimes. Defendant unequivocally acknowledged under
oath before the grand jury that he had reviewed the waiver of
immunity with counsel, had been advised as to the ramifications
of signing it – including its effect on his right to immunity –
and wished to waive immunity and testify. This acknowledgment,
together with the written waiver that he signed in the grand
jury's presence, fully satisfied the dictates of CPL 190.45 (see
People v Heidelmark, 214 AD2d 767, 769 [1995], lv denied 85 NY2d
973 [1995]; People v Young, 205 AD2d 908, 909-910 [1994]).

      Turning to defendant's claim that he was deprived of the
effective assistance of counsel, to the extent that such claim is
alleged to have impacted the voluntariness of his plea, it is
unpreserved for this Court's review, as the record does not
indicate that defendant moved to withdraw his plea (see People v
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Long, 117 AD3d 1326, 1327 [2014]; People v Griffin, 117 AD3d 1339
[2014]).1 In any event, defendant's claim rests primarily on the
assertion that counsel should have moved to dismiss the
indictment based upon defendant's alleged immunity, and a claim
of ineffective assistance cannot be established by counsel's
failure to make a motion "that has little or no chance of
success" (People v Caban, 5 NY3d 143, 152 [2005]; see People v
Bahr, 96 AD3d 1165, 1167 [2012], lv denied 19 NY3d 1024 [2012]).
The record shows that counsel filed appropriate pretrial motions
and negotiated a favorable plea for defendant, who otherwise
faced a possible sentence of six consecutive life terms in prison
(see People v Sylvan, 108 AD3d 869, 870 [2013], lv denied 22 NY3d
1091 [2014]; People v Leszczynski, 96 AD3d 1162, 1163 [2012], lv
denied 19 NY3d 998 [2012]).

      Defendant's contention that County Court erred in imposing
a supplemental sex offender victim fee is foreclosed by his valid
waiver of the right to appeal (see People v Frazier, 57 AD3d
1460, 1461 [2008], lv denied 12 NY3d 783 [2009]; People v Lemos,
34 AD3d 343, 343 [2006], lv denied 8 NY3d 924 [2007]).
Defendant's claim that his challenge survives the waiver in that
it concerns the legality of his sentence is without merit, as the
various fees and surcharges mandated by Penal Law § 60.35 are not
a part of a defendant's sentence (see People v Guerrero, 12 NY3d
45, 47-48 [2009]; People v Ryan, 83 AD3d 1128, 1130 [2011]).


    1
        Defendant contends that his motion to vacate the judgment
of conviction preserved this issue for our review within the
context of his direct appeal. Where, as here, the propriety of a
guilty plea is contested, and the issue may be reviewed by
reference to the record, preservation of the issue for direct
appeal is accomplished by motion to withdraw the plea (see CPL
220.60 [3]). By contrast, when the record is insufficient to
support review, the vehicle for placing the issue before the
trial court is through a CPL article 440 motion to vacate the
judgment of conviction. To the extent that our prior decisions
might be read to suggest that a motion to vacate the judgment of
conviction is sufficient to preserve an issue for review on
direct appeal, they should not be followed.
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                                                   106121

      Finally, County Court's summary denial of defendant's
motion to vacate the judgment of conviction pursuant to CPL
440.10 was proper, as the record on defendant's direct appeal was
sufficient to review his contention that he received the
ineffective assistance of counsel with respect to statutory
immunity, and defendant presented no new evidence on his motion
(see CPL 440.10 [2] [b]; People v Kindred, 100 AD3d 1038, 1041
[2012], lv denied 21 NY3d 913 [2013]; People v Trombley, 91 AD3d
1197, 1203 [2012], lv denied 21 NY3d 914 [2013]). Defendant's
remaining contentions have been examined and found to be without
merit.

     Peters, P.J., Rose, Egan Jr. and Clark, JJ., concur.



     ORDERED that the judgment and order are affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
