People v Dacosta
2026 NY Slip Op 04532
July 23, 2026
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
The People of the State of New York, Plaintiff,
v
Colon R. Dacosta, Also Known as Colone Decosta and Colon Patterson Dacosta, Appellant.
Decided and Entered:July 23, 2026
CR-23-2030 CR-25-0962
Calendar Date: May 29, 2026
Before: Clark, J.P., Aarons, Ceresia, Mcshan And Powers, JJ.
Carolyn B. George, Albany, for appellant.
[*1]
McShan, J.
Appeals (1) from a judgment of the Supreme Court (Stephan Schick, J.), rendered September 29, 2023 in Sullivan County, convicting defendant upon his plea of guilty of the crimes of criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the seventh degree, and (2) by permission, from an order of said court, entered May 16, 2025 in Sullivan County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
In July 2019, police obtained a search warrant to search a mobile home where defendant resided. The warrant application was supported by the affidavit of a State Police investigator, who attested that she supervised two controlled buys of narcotics by a confidential informant (hereinafter CI), who purchased from defendant at his residence a substance that appeared to be cocaine and a substance that field tested positive for heroin and fentanyl. During the execution of the search warrant, police recovered from defendant's residence, among other things, a loaded handgun that had been reported as stolen, a stun gun and several drugs including heroin.
Defendant was charged by indictment with criminal possession of a weapon in the second degree (count 1), criminal possession of stolen property in the fourth degree (count 2), criminal possession of a controlled substance in the third degree (count 3), criminal possession of a controlled substance in the fourth degree (count 4), criminal possession of a weapon in the third degree (count 5), two counts of criminal possession of a controlled substance in the seventh degree (counts 6 and 7), criminally using drug paraphernalia in the second degree (count 8) and unlawful possession of marihuana (count 9). In November 2019 defendant pleaded guilty, in full satisfaction of the indictment as well as two unindicted drug sales and an unrelated conspiracy charge, to counts 1 through 5. In connection with this plea, defendant signed a written appeal waiver.
Over a year later, Supreme Court granted defendant's motion to vacate the plea. Defendant proceeded to trial in March 2022; however, during jury selection, defendant pleaded guilty, in full satisfaction of the indictment, to criminal possession of a weapon in the second degree (count 1), which would be reduced to criminal possession of a weapon in the fourth degree if defendant remained free from arrest and followed the court's orders until sentencing, and criminal possession of a controlled substance in the seventh degree, reduced from criminal possession of a controlled substance in the third degree (count 3). However, defendant failed to appear for sentencing, absconded and was not apprehended until June 2023. Thereafter, he filed a pro se motion to withdraw his March 2022 guilty plea. After a hearing at which defendant and one of his prior counsel testified, Supreme Court denied the motion and sentenced defendant to 3½ years in prison, to be followed by [*2]five years of postrelease supervision, on the count of criminal possession of a weapon in the second degree and a concurrent jail term of one year on the count of criminal possession of a controlled substance in the seventh degree.
In March 2024, defendant filed a pro se CPL 440.10 motion, arguing first that he was "forced" to plead guilty due to the ineffective assistance of counsel as well as prosecutorial and judicial misconduct and, later, that he had new information about an interaction with a State Police investigator that occurred several months before his arrest. Supreme Court denied the motion without a hearing, finding, among other things, that defendant's new claims regarding the investigator were self-serving and that defendant's other arguments were based in the record and would be considered by this Court on his pending direct appeal. Defendant appeals from the judgment of conviction and, by permission, the denial of his CPL article 440 motion.
At the outset, we agree with defendant's contention that his November 2019 waiver of appeal does not preclude his arguments on this appeal, as the plea to which that waiver applied was withdrawn, and no such waiver was included in the March 2022 plea from which he now appeals (see People v Favors, 166 AD3d 1534, 1534 [4th Dept 2018]; People v Graham, 187 AD2d 389, 389-390 [1st Dept 1992], lv denied 81 NY2d 840 [1993]; see generally People v Sabb, 238 AD3d 1212, 1214 [3d Dept 2025], affd ___ NY3d ___, 2026 NY Slip Op 01590 [2026]). Accordingly, his challenges to the search warrant and corresponding seizure of contraband and firearms are properly before us. Nevertheless, we find that his various challenges are without merit.
Defendant argues that the search warrant was invalid because it was based on hearsay statements from the CI with no basis for the CI's knowledge, no affidavit from the CI and insufficient details as to the other investigations that the CI was involved in to establish the CI's reliability. "In order to establish probable cause for the issuance of a search warrant, the warrant application must demonstrate that there is sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place" (People v Tucker, 222 AD3d 1038, 1040 [3d Dept 2023] [internal quotation marks and citations omitted]; see People v Alberts, 161 AD3d 1298, 1304 [3d Dept 2018], lv denied 31 NY3d 1114 [2018]). "The search warrant application may rely upon information provided by a CI, provided that it satisfies the two-part Aguilar-Spinelli test requiring a showing that the informant is reliable and has a basis of knowledge for the information imparted" (People v Merritt, 218 AD3d 1058, 1059 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied 40 NY3d 1093 [2024]; see People v Pasco, 134 AD3d 1257, 1257 [3d Dept 2015]). "A CI's basis of knowledge may be established through his or her own description of underlying circumstances personally observed[*3]" or, as relevant here, "by police investigation that corroborates the defendant's actions or that develops information consistent with detailed predictions by the informant" (People v Merritt, 218 AD3d at 1059 [internal quotation marks, brackets and citations omitted]).
The search warrant application was supported by the affidavit of a State Police investigator, who attested that, on two occasions, the CI contacted defendant in her presence to arrange to purchase drugs at defendant's residence and, while under physical and audio surveillance, purchased a substance that appeared to be cocaine and a substance that field tested positive for heroin and fentanyl. Thus, probable cause was not entirely predicated on the reliability of the CI, as law enforcement had direct involvement in the controlled buy (see People v Luciano, 152 AD3d 989, 992 [3d Dept 2017], lv denied 30 NY3d 1020 [2017]; People v Marshall, 57 AD3d 1163, 1165 [3d Dept 2008]). Defendant also contends that the warrant did not extend to his closet and thus the gun found there should have been suppressed. That argument lacks merit, as the warrant authorized the search of defendant's mobile home, which included "all areas and containers within the subject premises, including the skirted area beneath the residence." Accordingly, the seizure of the gun occurred while law enforcement was lawfully in a position to observe it (see People v Cole, 162 AD3d 1219, 1220 [3d Dept 2018], lv denied 32 NY3d 1002 [2018]; People v Gerow, 85 AD3d 1319, 1320 [3d Dept 2011]).FN1
Defendant also raises various contentions on direct appeal that, in sum, contend that he was deprived of the effective assistance of counsel. We find each of his contentions without merit. "To establish a claim of ineffective assistance of counsel, a defendant is required to come forward with proof that the attorney failed to provide meaningful representation and that there was no strategic or other legitimate explanations for counsel's allegedly deficient conduct" (People v Harris, 246 AD3d 1293, 1298-1299 [3d Dept 2026] [internal quotation marks and citations omitted], lv denied 45 NY3d 971 [2026]; see People v Reinfurt, 241 AD3d 1015, 1025 [3d Dept 2025], lv denied 44 NY3d 1067 [2026]).
Acknowledging that trial counsel did not pursue a Darden hearing, rendering unpreserved his argument that one was warranted (see People v Hogle, 236 AD3d 1114, 1115 [3d Dept 2025], lv denied 43 NY3d 1009 [2025]; People v Nellons, 187 AD3d 1574, 1575 [4th Dept 2020], lv denied 36 NY3d 1058 [2021]; People v Shabazz, 177 AD3d 1170, 1173 [3d Dept 2019]; People v Brown, 167 AD3d 1331, 1333 [3d Dept 2018]), defendant argues that such failure establishes that counsel was ineffective. However, a Darden hearing is only required, upon a defendant's request, when the People rely on the statements of a CI to establish probable cause (see People v Jackson, 189 AD3d 1705, 1705 [3d Dept 2020], lv denied 36 NY3d 1098 [2021]; People v Givans, 170 AD3d 1638, 1639[*4][4th Dept 2019]). As the affidavit of law enforcement supported the CI's reliability through direct observation, a hearing was not required (see People v Crooks, 27 NY3d 609, 614-615 [2016]; People v Luciano, 152 AD3d at 992-993; see also People v Kirkley, 172 AD3d 1541, 1542 [3d Dept 2019], lv denied 33 NY3d 1106 [2019]) and, correspondingly, the failure to request one did not reflect that counsel was ineffective (see People v Reichel, 211 AD3d 1090, 1091 [3d Dept 2022], lv denied 39 NY3d 1113 [2023]; People v Ruffin, 191 AD3d 1174, 1182 [3d Dept 2021], lv denied 37 NY3d 960 [2021]). Similarly, for the reasons discussed herein with respect to the search warrant and seizure, we find no merit to his contention that counsel was ineffective for failing to pursue a suppression hearing (see People v Reichel, 211 AD3d at 1091; People v Agueda, 202 AD3d 1153, 1155-1156 [3d Dept 2022], lv denied 38 NY3d 1031 [2022]; People v Ballard, 200 AD3d 1476, 1478 [3d Dept 2021], lv denied 38 NY3d 925 [2022]).
Regarding defendant's argument that counsel failed to pursue a speedy trial dismissal, "[t]o the extent that defendant contends that counsel was not authorized to effectuate such a waiver, the decision to waive speedy trial rights is not so fundamental that it cannot be made by counsel alone" (People v Bender, 236 AD3d 1184, 1190 [3d Dept 2025] [internal quotation marks, ellipsis and citations omitted], affd ___ NY3d ___, 2026 NY Slip Op 01444 [2026]; see People v Strauss, 179 AD3d 1487, 1489 [4th Dept 2020], lv denied 35 NY3d 974 [2020]). In any event, as to the time frame defendant points to, which precipitated his initial plea that was later withdrawn, that plea was notably entered prior to the expiration of the six-month speedy trial clock (see CPL 30.30 [4] [a]). Although the saga of defendant's criminal proceedings was lengthy and encompassed representation by four separate attorneys, ultimately, it is evident from the record that, with respect to the entirety of representation, defendant received "an extremely favorable plea . . . in the face of significant sentencing exposure" (People v Clay, 245 AD3d 994, 997 [3d Dept 2026], lv denied 45 NY3d 935 [2026]). With that context in mind, defendant fails to establish a lack of legitimate or strategic reasons for the various decisions made by any of his counsel over the course of his representation (see People v Gonyea, 211 AD3d 1102, 1105 [3d Dept 2022], lv denied 39 NY3d 1110 [2023]; see also People v Mowry, 246 AD3d 1288, 1292 [3d Dept 2026], lv denied 45 NY3d 973 [2026]).
As to the claims raised in defendant's CPL article 440 motion, we find them facially without merit and, in turn, find that Supreme Court properly denied the motion without a hearing. "The decision to grant or deny a CPL article 440 motion, with or without a hearing, is entrusted to the sound discretion of the trial court" (People v Phelps, 236 AD3d 1194, 1195 [3d Dept 2025] [citations omitted]; accord People v Nelson, 243 AD3d 958, 961[*5][3d Dept 2025]). "On a motion to vacate a judgment of conviction under CPL 440.10, a hearing is only required if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief" (People v Wilcox, 218 AD3d 965, 966 [3d Dept 2023] [internal quotation marks and citations omitted]; accord People v Carota, 235 AD3d 1069, 1071 [3d Dept 2025], lv denied 43 NY3d 962 [2025]). On his motion, defendant raised a host of arguments assailing the validity of the search warrant. Those arguments raise record-based claims that are addressed herein (see People v Carota, 235 AD3d at 1071). Defendant also argued, as supported by an affidavit from his mother, that there existed new evidence stemming from a May 2019 traffic stop that led to defendant's arrest on an unrelated warrant several months before the instant arrest. Supreme Court properly rejected those arguments as supported by nothing beyond self-serving affidavits from himself or interested parties (see People v Roque, 234 AD3d 1050, 1054 [3d Dept 2025], lv denied 43 NY3d 946 [2025]; People v Clark, 231 AD3d 1291, 1295 [3d Dept 2024], lv denied 43 NY3d 943 [2025]; People v Hooker, 230 AD3d 1465, 1468-1469 [3d Dept 2024]). To the extent defendant relies on such allegations to support his claim of ineffective assistance of counsel, we find that his arguments fall short of establishing "his entitlement to a hearing and [Supreme] Court did not abuse its discretion in summarily denying the motion" (People v Oquendo, 248 AD3d 1325, 1336-1337 [3d Dept 2026]; see CPL 440.30 [4] [d]; People v Carota, 235 AD3d at 1071; People v Gonyea, 211 AD3d at 1106; People v Spradlin, 188 AD3d 1454, 1460-1461 [3d Dept 2020], lv denied 37 NY3d 960 [2021]). Defendant's remaining contentions, to the extent not explicitly addressed, have been considered and found without merit.
Finally, we note that the People failed to file a brief on this appeal despite requesting and receiving multiple extensions to do so. This failure prompts us to remind "that District Attorneys are obligated by County Law § 700 (1) to file a brief setting forth their position regarding a defendant's appeal and that failure to do so constitutes dereliction of duty" (People v Meade, 195 AD2d 756, 757 [3d Dept 1993], abrogated on other grounds by People v Quinones, 95 NY2d 349 [2000]; see People v Sawyer, 188 AD2d 939, 940 [3d Dept 1992]; see also People v Maull, 218 AD3d 1236, 1243 [4th Dept 2023]; People v Coger, 2 AD3d 1279, 1280 [4th Dept 2003], lv denied 2 NY3d 738 [2004]; People v Herman, 187 AD2d 1027, 1028 [4th Dept 1992]). "[W]e emphasize that such duty is in no way diminished or excused by reason of the fact that we have affirmed the conviction after a careful consideration of the record and law" (People v Vullo, 153 AD3d 1630, 1631 [4th Dept 2017] [internal quotation marks, ellipsis and citation omitted], lv denied 30 NY3d 1064 [2017]).
Clark, J.P., Aarons, Ceresia and Powers, JJ., concur.
ORDERED that the judgment and the order are affirmed.
Footnotes
Footnote 1
Defendant also argues that the People failed to establish the chain of custody for the drugs purchased by the CI during the controlled buys. However, as defendant's convictions were based on items seized during the execution of the search warrant and not on the drugs purchased by the CI during the earlier controlled buys, his arguments lack merit.