                          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
