People v Sierra

[*1] People v Sierra 2006 NY Slip Op 51885(U) [13 Misc 3d 1217(A)] Decided on August 21, 2006 Supreme Court, Queens County Flaherty, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 21, 2006
Supreme Court, Queens County

The People of the State of New York

against

Reinaldo Sierra, Defendant



229/00

Timothy J. Flaherty, J.

Defendant's motion to vacate is denied for the reasons set forth in the accompanying memorandum.

Defendant moves, pro se, for an order vacating the judgment imposed on April 25, 2001 [*2]

wherein the defendant was sentenced to concurrent determinate terms of imprisonment of ten

years arising out of a negotiated plea to two counts of Robbery in the First Degree in full

satisfaction of Queens County Indictment Numbers 229/2000 and 1111/2000. These

indictments charged the defendant with two gun point holdups, one of an insurance agency on

Rockaway Boulevard on January 7, 2000 and the other of an insurance agency on January 9,

2000 on Liberty Avenue, both in Queens County. As part of the plea agreement, appellate

review was waived by the defendant.

Defendant claims that his sentence is illegal because it contains a 5 year term of post

release supervision, in violation of his state and federally guaranteed constitutional rights to due

process. He further claims that his state and federal constitutional rights to effective assistance of

counsel were violated because his attorney allegedly failed to advise him that the ten year

sentence negotiated by him on defendant's behalf contained the aforementioned term of post

release supervision.

This is the fourth application that the defendant has made grounded in the fact that at the

time of plea and sentence he was not advised on the record that the negotiated ten year sentence

included a five year term of post relief supervision. The first of these applications was made in

2003. At that time the Court, in denying his motion for re-sentence, noted a reference in

defendant's papers suggesting a desire to vacate his plea., and specifically invited the defendant

to file a motion to renew, if indeed he sought such relief. It appeared to the Court then and now,

that what the defendant truly desired was relief to which he was not entitled, to wit, relief from [*3]

the post release component of his sentence, and retention of the bargained for sentence of ten

years [see Order of this Court dated July 21, 2003].

Defendant did indeed move to renew, but, as expected, limited the relief he sought to re-

sentence, rather than risk the loss of his bargained for plea [see Order of this Court dated

December 2, 2003].

In 2005 the Court of Appeals decided People v. Catu, 4 NY3rd 242 and vacated a plea on

a direct appeal on the grounds that the defendant was entitled to be advised, on the record , that

the bargained for sentence included a period of post release supervision. Thereafter, defendant

filed a new motion - once again limiting the relief sought therein to a re-sentence. On January

30, 2006 this Court again denied defendant's motion for the reasons set forth in the earlier

decisions.

In the instant motion defendant invokes 440.10 of the CPL, the statutory vehicle for

collaterally attacking a judgment, rather than, as he did previously, 440.20, by which a collateral

attack can be made against the sentence. But in his initial moving papers, defendant again

carefully avoids specifically requesting the withdrawal of his plea of guilty, although he does

make such a request in his reply affidavit dated August 9, 2006.

Section 440.10 (3)(b) permits the Court to deny a 440.10 application when the merits of a

motion has previously been decided. Section 440.10(3)( c ) permits the Court to deny a 440.10

application when "the defendant was in a position adequately to raise the ground or issue

underlying the present motion but did not do so." [*4]

The motion to vacate the sentence has previously been addressed. If indeed, at this late

juncture, defendant wants to vacate his plea, he certainly could have sought that relief in any of

his several prior applications. He also could have made the claim that his attorney's alleged

failure to advise him about the post release component to the sentence constituted ineffective

assistance of counsel. He did not do so.

In short, all of defendant's present claims can easily be fit within one or the other of the

aforementioned procedural bars. Accordingly, the Court, in the exercise of its discretion and in

the interests of justice, denies the motion in its entirety [CPL Section 440.10(3)(b)(c)].

Order entered accordingly.

The Clerk of the Court is directed to mail a copy of this Memorandum and Order to the

defendant at his last known address and to the District Attorney.

DATED: August 21, 2006

___________________________TIMOTHY J. FLAHERTY, J.S.C.