| People v Hillriegel |
| 2010 NY Slip Op 08395 [78 AD3d 1381] |
| November 18, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Scott Hillriegel,Appellant. |
—[*1] James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Stein, J. Appeal, by permission, from an order of the County Court of Sullivan County (LaBuda,J.), entered September 15, 2009, which denied defendant's motion pursuant to CPL 440.10 to vacatethe judgments convicting him of the crimes of assault in the second degree, criminal possession of aweapon in the second degree and reckless endangerment in the first degree, without a hearing.
Defendant pleaded guilty to assault in the second degree in 2004 and was thereafter sentenced to ajail term of six months and probation of five years. Shortly afterward, he fired a handgun near a houseoccupied by several individuals. As such, he pleaded guilty in 2006 to a superior court informationcharging him with criminal possession of a weapon in the second degree and reckless endangerment inthe first degree and waived his right to appeal. He also entered an admission to a probation violationpetition, and his probation was revoked. County Court sentenced him, as promised, to an aggregateprison term of nine years to be followed by postrelease supervision of five years. Defendant did notappeal from either judgment, instead bringing the present motion to vacate the judgments pursuant toCPL 440.10. County Court denied the motion without a hearing and, with this Court's permission,defendant appeals.
We affirm. Defendant asserts that his 2004 guilty plea was not a knowing and voluntary one due toCounty Court's inaccurate recitation of his potential sentencing exposure during the [*2]plea proceedings. Inasmuch as that error was apparent on the record, itcould have been raised upon direct appeal, thus foreclosing CPL article 440 relief (see CPL440.10 [2] [c]; People v Angelakos, 70 NY2d 670, 672-673 [1987]; People v Lagas, 49 AD3d 1025, 1026[2008], lv denied 10 NY3d 859 [2008]). The same is true for his contention that the 2006superior court information and waiver of indictment were jurisdictionally defective (see People v Cuadrado, 9 NY3d 362,364-365 [2007]; People v Brown, 59AD3d 1058, 1058-1059 [2009], lv denied 12 NY3d 851 [2009]). We are unconvincedby defendant's argument that his failure to raise such issues on direct appeal was justified (see People v Chiu Mei Lan Kwok, 51AD3d 814, 815 [2008]). Nor are we persuaded by defendant's argument—to the extent itis properly raised in a CPL article 440 motion—that he received the ineffective assistance ofcounsel.
Lastly, defendant contends that he was sentenced to an illegal term of postrelease supervision uponhis assault conviction. As that issue relates solely to the validity of his sentence, it cannot be raised in thepresent motion (see CPL 440.10 [2] [d]; People v Reed, 61 AD3d 1216, 1217 [2009]).
Spain, J.P., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed.