The defendant, pro se, moves this Court pursuant to CPL § 440.10 for an order vacating the judgment against him on the following grounds:

1. The Court lacked jurisdiction to sentence the defendant "because there was no timely indictment."

2. The prosecution " intended to introduce (material) evidence that was obtained in violation of defendant rights under the United States and the New York Constitution."

3. There was no probable cause for the search and seizure of the defendant's rental car. [*2][*3]

4. The defendant's conviction was the result of ineffective assistance of counsel.

The People oppose the defendant's motion in its entirety.

The defendant was arrested on October 28, 2005 and charged with two counts of Criminal Possession of a Controlled Substance in the Third Degree in violation of PL §§ 220.16[1] and 220.16[12]. On March 1, 2006, the defendant pleaded guilty under SCI No. 00455/2006 to Criminal Possession of a Controlled Substance in the Fifth Degree (PL§ 220.06[1] ) and was sentenced on May 2, 2006, as a second felony drug offender, to a determinate term of imprisonment of one year and six months, and two years of post-release supervision. On June 13, 2006, the defendant filed an untimely notice of appeal, but as of yet has not moved to file a late notice of appeal, pursuant to CPL § 460.30.

The defendant contends first that his judgment of conviction should be vacated because the trial court did not have jurisdiction over the action. Based on this ground, the defendant's motion is denied. It must be noted initially that the defendant was never charged by indictment. Instead, he pleaded guilty pursuant to a Supreme Court Information. During his plea, the defendant orally and in writing waived his right to be prosecuted by an indictment and agreed to be prosecuted by a Supreme Court Information. Based upon this, the defendant's first claim has no merit. Additionally, the claim is procedurally barred because the facts underlying the claim are reviewable from the record or could with due diligence by the defendant have readily been made to appear on the record in a manner providing adequate basis for review on appeal (CPL § 440.10(2)(b), (2)( c ), (3)(a); People v Hall, 28 AD3d 678 (2nd Dept. 2006); People v Donovan, 107 AD2d 433 (2nd Dept. 1985).

The defendant's next contention, that the conviction should be vacated because it is based upon an allegedly unlawful search and seizure of his vehicle, must also be denied. Firstly, this claim is procedurally barred as it could have been made to appear on the record on an appeal of his conviction, and the defendant has unjustifiably failed to adduce such matter prior to sentence (CPL § 440.10(3)(a); Hall, 28 AD3d at 678). Moreover, even if the defendant's claim was not procedurally barred, his voluntary plea of guilty forfeited any claim that the evidence was illegally procured (People v Fernandez, 67 NY2d 686 [1986]).

The defendant next contends that his conviction should be vacated because of the People's failure to provide him with Brady material. To the extent that the Brady material allegedly withheld is impeachment evidence concerning a cooperation agreement with a co-defendant, the United States Supreme Court has held that a defendant is not constitutionally entitled to such evidence before a guilty plea (US v Ruiz, 536 US 622 [2002]). The defendant fails to articulate the nature of any other Brady material allegedly withheld. Accordingly, his claim is too vague to address and should be denied because the allegations are merely conclusory and not supported by any evidentiary facts (CPL § 440.30 (4)(b); People v Session, 34 NY2d 254 (1974).

The defendant's next claim that his conviction should be vacated based on prosecutorial misconduct is totally unsubstantiated by anything other than the defendant's own conclusory assertions. Therefore his motion based on this claim must be denied as well (CPL § 440.30(4)(b); People v Brown, 56 NY2d 242 [1982]; Session, 34 NY2d at 256; People v Baachi, 186 AD2d 663 [2nd Dept. 1992]). [*4][*5]

Lastly, the defendant claims that he was denied effective assistance of counsel. He alleges that his attorney failed to adequately consult with him prior to his change of plea and that his attorney failed to advise him of his right to challenge physical evidence seized by the police. The contention that counsel did not spend adequate time with the defendant prior to his change of plea is belied by the record. When he was specifically asked whether he had enough time to speak with his attorney prior to his pleading guilty, the defendant answered, "Yes, sir." He gave the same answer when asked if he was satisfied with his attorney's representation.

The defendant's claim that his attorney failed to inform him of his right to challenge the admissibility of evidence or that he had a viable suppression motion is unsupported by anything other than the defendant's own statements. This does not support a claim of ineffective assistance of counsel (CPL § 440.30(4)(b); People v Rivera, 71 NY2d 705 [1998]; People v Fields, 287 AD2d 577 [2nd Dept. 2001]).

The defendant's claim of ineffective assistance of counsel is also refuted by the fact that he received an advantageous plea (People v Ford, 86 NY2d 397 [1995]; People b Boodhoo, 191 AD2d 448 [2nd Dept.1993]). His attorney was able to negotiate a plea bargain in which the defendant pleaded guilty to Criminal Possession of a Controlled Substance in the Fifth Degree, a class D felony, when in fact, he was charged with two counts of Criminal Possession of a Controlled Substance in the Third Degree, a B felony. Pursuant to his plea, the defendant was sentenced as a second felony drug offender to a determinate term of one and one half years imprisonment, whereas if he had been convicted of the original counts, he might have received a sentence of twelve years.

Based upon the foregoing, the defendant's motion to vacate his judgment of conviction is denied.

SO ORDERED.

E N T E R

Dated: February 5, 2007

/s/

HON. EDWARD MARON, ACCJ