People v Simmons

People v Simmons 2012 NY Slip Op 07707 Decided on November 14, 2012 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 14, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
RUTH C. BALKIN
JOHN M. LEVENTHAL
CHERYL E. CHAMBERS, JJ.
2011-02705
(Ind. No. 3241/04)

[*1]The People of the State of New York, respondent,

v

Donell Simmons, appellant.




Lynn W. L. Fahey, New York, N.Y. (Kathleen Whooley of
counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John
M. Castellano and Amanda M. Aycock
of counsel), for respondent.


DECISION & ORDER

Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County (Erlbaum, J.), dated February 2, 2011, which denied, without a hearing, his motion pursuant to CPL 440.20 to set aside so much of his sentence as imposed a period of five years of postrelease supervision.

ORDERED that the order is affirmed.

The defendant contends that he was deprived of his state and federal constitutional rights to effective assistance of counsel on his motion pursuant to CPL 440.20 to set aside so much of his sentence as imposed a period of five years of postrelease supervision. Contrary to the defendant's contention, a defendant cannot claim a state or federal constitutional right to effective assistance of counsel on a motion pursuant to CPL 440.20 to set aside a sentence or a part thereof (see Coleman v Thompson, 501 US 722, 752; Pennsylvania v Finley, 481 US 551, 555; People v Richardson, 159 Misc 2d 167).
RIVERA, J.P., BALKIN, LEVENTHAL and CHAMBERS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court