PEOPLE v. MARTINEZ (2007)

Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County (Roman, J.), dated October 27, 2003, which denied, without a hearing, his motion pursuant to CPL 440.10(1)(h) to vacate a judgment of the same court rendered May 17, 2001, convicting him of robbery in the first degree, upon his plea of guilty, and sentencing him as a second felony offender.

ORDERED that the order is affirmed.

Pursuant to a promise made to the defendant at the time of his plea of guilty, the court sentenced him, as a second felony offender, to a determinate sentence of eight years.   The defendant was not advised, at the time of his plea, that his sentence would include any period of post-release supervision, and neither the sentencing minutes nor the court's order of commitment mentioned the imposition of any period of post-release supervision.   Therefore, the sentence actually imposed by the court never included, and does not now include, any period of post-release supervision (see Hill v. U.S. ex rel. Wampler, 298 U.S. 460, 56 S.Ct. 760, 80 L.Ed. 1283;  People v. Wilson, 37 A.D.3d 855, 829 N.Y.S.2d 917;  People v. Noble, 37 A.D.3d 622, 831 N.Y.S.2d 198;  Earley v. Murray, 451 F.3d 71, rearg. denied 462 F.3d 147;  but see People v. Sparber, 34 A.D.3d 265, 823 N.Y.S.2d 405).   Inasmuch as the defendant received precisely the sentence for which he bargained, he has failed to articulate any reason for vacating his judgment of conviction pursuant to CPL 440.10(1)(h) (cf. People v. Catu, 4 N.Y.3d 242, 792 N.Y.S.2d 887, 825 N.E.2d 1081), and we therefore affirm the denial of his motion (see People v. Wilson, supra;  People v. Noble, supra ).