Opinion
Nos. 2020-05492 2021-07998 Ind. No. 2821/15
08-17-2022
The People of the State of New York, respondent, v. Juan Henriquez Ramos, appellant.
Richard L. Herzfeld, New York, NY, for appellant. Raymond A. Tierney, District Attorney, Riverhead, NY (Karla Lato and Marion Tang of counsel), for respondent.
Richard L. Herzfeld, New York, NY, for appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Karla Lato and Marion Tang of counsel), for respondent.
ANGELA G. IANNACCI, J.P. SHERI S. ROMAN PAUL WOOTEN JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
Appeals by the defendant, by permission, (1) from an order of the County Court, Suffolk County (Stephen Braslow, J.), dated February 20, 2020, and (2) from so much of a corrected order of the same court dated August 21, 2020, as, upon vacating the order dated February 20, 2020, without a hearing, denied his motion pursuant to CPL 440.10 and 440.20 to vacate a judgment of the same court rendered November 3, 2016, convicting him of rape in the first degree (two counts), sexual abuse in the first degree (three counts), course of sexual conduct against a child in the first degree, and course of sexual conduct against a child in the second degree, upon a jury verdict, and imposing sentence, and to set aside the sentence.
ORDERED that the appeal from the order dated February 20, 2020, is dismissed, as that order was superseded by the corrected order dated August 21, 2020; and it is further, ORDERED that the corrected order dated August 21, 2020, is affirmed insofar as appealed from.
Following a jury trial, the defendant was convicted of crimes including rape in the first degree. The defendant's judgment of conviction was affirmed by this Court on direct appeal (see People v Henriquez-Ramos, 166 A.D.3d 1008).
In December 2019, the defendant moved pursuant to CPL 440.10 and 440.20 to vacate the judgment of conviction and to set aside the sentence. In a corrected order dated August 21, 2020, the County Court, inter alia, denied the defendant's motion. The defendant appeals.
"CPL 440.10 provides that a court must deny a motion to vacate a judgment of conviction when the ground or issue raised was previously determined on the merits upon an appeal from the judgment or there were sufficient facts on the record which would have permitted appellate review of the issue on direct appeal but no review occurred owing to the defendant's unjustifiable failure to perfect a direct appeal or raise the issue on direct appeal" (People v LeBron, 128 A.D.3d 851, 852 [internal quotation marks omitted]; see CPL 440.10[2][c]; People v Terrero, 198 A.D.3d 930, 931). Here, the County Court properly denied the defendant's motion pursuant to CPL 440.10 and 440.20 to vacate the judgment of conviction and to set aside the sentence as procedurally barred, since the claims raised on that motion appeared on the face of the record, and thus, were subject to review on direct appeal (see id. § 440.10[2][c]; People v Bhuiyan, 181 A.D.3d 699, 701).
The defendant's contention that he was deprived of the effective assistance of appellate counsel is not properly before this Court, since the appropriate avenue for the defendant to raise such a claim is to seek a writ of error coram nobis (see People v Wingate, 184 A.D.3d 738, 740-741; People v Watson, 49 A.D.3d 570).
The defendant's remaining contention is without merit.
IANNACCI, J.P., ROMAN, WOOTEN and ZAYAS, JJ., concur.