Opinion
2012-11-14
The PEOPLE, etc., respondent, v. Donell SIMMONS, appellant.
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano*880and Amanda M. Aycock of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano*880and Amanda M. Aycock of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County (Erlbaum, J.), dated February 2, 2011, which denied, without a hearing, his motion pursuant to CPL 440.20 to set aside so much of his sentence as imposed a period of five years of postrelease supervision.
ORDERED that the order is affirmed.
The defendant contends that he was deprived of his state and federal constitutional rights to effective assistance of counsel on his motion pursuant to CPL 440.20 to set aside so much of his sentence as imposed a period of five years of postrelease supervision. Contrary to the defendant's contention, a defendant cannot claim a state or federal constitutional right to effective assistance of counsel on a motion pursuant to CPL 440.20 to set aside a sentence or a part thereof ( see Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640;Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539;People v. Richardson, 159 Misc.2d 167, 603 N.Y.S.2d 700).