Opinion
December 26, 1985
Appeal from the County Court of Albany County (Turner, Jr., J.).
Defendant was convicted of assault in the first degree and sentenced to an indeterminate term of 20 years to life as a persistent felony offender. Defendant took an appeal from that conviction to this court and the conviction was affirmed without opinion ( 97 A.D.2d 682, lv. denied 61 N.Y.2d 673). Defendant then brought the instant motion to set aside his sentence, contending that he was improperly sentenced as a persistent felony offender under the provisions of Penal Law § 70.10. The People opposed the motion and County Court denied it on the basis that the issue presented had been determined on the merits on defendant's prior appeal to this court from his judgment of conviction. Defendant appeals the denial of his postjudgment motion by County Court, asserting that it was an abuse of discretion to deny his motion without a hearing.
CPL 440.20 (2) provides that the court must deny a motion to set aside a sentence when it is predicated on a ground or issue previously determined on the merits on an appeal taken from the judgment. In the instant case, defendant raised the issue of the propriety of his sentence as a persistent felony offender pursuant to Penal Law § 70.10 on the direct appeal to this court. Thus, he is not entitled to be reheard on the same issue on this motion to set aside his sentence (see, People ex rel. Pritchard v Harris, 82 A.D.2d 842, lv. denied 54 N.Y.2d 608).
Order affirmed. Main, J.P., Mikoll, Yesawich, Jr., Levine and Harvey, JJ., concur.