People v. Henriquez Ramos

• Decision Date: 17 August 2022
• Docket Number: 2020–05492, 2021–07998,Ind. No. 2821/15
• Citation: 171 N.Y.S.3d 897 (Mem)
• Parties: The PEOPLE, etc., respondent, v. Juan HENRIQUEZ RAMOS, appellant.
• Court: New York Supreme Court — Appellate Division

171 N.Y.S.3d 897 (Mem)

The PEOPLE, etc., respondent,

v.Juan HENRIQUEZ RAMOS, appellant.

2020–05492, 2021–07998

Ind. No. 2821/15

Supreme Court, Appellate Division, Second Department, New York.

Submitted—May 31, 2022

August 17, 2022

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ORDERED that the appeal from the order dated February 20, 2020, is dismissed, as that order was superseded by the corrected order dated August 21, 2020; and it is further,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, 86 N.Y.S.3d 747 ).

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, 9 N.Y.S.3d 128 [internal quotation marks omitted]; see CPL 440.10[2][c] ; People v. Terrero, 198 A.D.3d 930, 931, 155 N.Y.S.3d 435 ). Here, the County Court properly denied the defendant's motion pursuant to CPL 440.10 and 440.20 to...