People v. Mercado

167 A.D.2d 133, 562 N.Y.S.2d 407, 1990 N.Y. App. Div. LEXIS 13029

Opinion

Order, Supreme Court, Bronx County (Phylis Bamberger, J.), entered on July 13, 1988, which denied defendant’s motion pursuant to CPL 440.20 to vacate an indeterminate sentence of IV2 to 22 years, unanimously affirmed.

Having pleaded guilty to attempted murder in the second degree, defendant was originally sentenced to an indeterminate term of imprisonment of 10 to 20 years. On a prior motion the defendant argued and the People conceded that the sentence was illegal, since the crime to which defendant pleaded guilty was not an armed violent felony. Defendant was resentenced to a term of IV2 to 22 Vi years, which was affirmed (134 AD2d 969). Thereafter, defendant moved pursuant to CPL 440.20 to vacate the plea and conviction. The denial of the motion is the subject of this appeal.

Defendant argues on appeal that a hearing was required since he alleged that his counsel was ineffective in not informing him that the maximum sentence might be increased. The trial court’s denial of the defendant’s CPL 440.20 motion was proper as the record shows that the possibility that the maximum could be increased to 25 years was known to both defendant and his attorney. Concur—Kupferman, J. P., Sullivan, Milonas, Ellerin and Rubin, JJ.