PEOPLE v. PRATT (2005)

Appeal, by permission, from an order of the County Court of Saratoga County (Scarano Jr., J.), entered October 6, 2004, which denied defendant's motion pursuant to CPL 440.20 to set aside the sentence following his conviction of the crime of sexual abuse in the first degree, without a hearing.

In satisfaction of a multiple-count indictment, defendant pleaded guilty to one count of sexual abuse in the first degree and was sentenced to a prison term of seven years, to be followed by five years of postrelease supervision.   On appeal, this Court affirmed defendant's conviction (303 A.D.2d 843, 755 N.Y.S.2d 339 [2003], lv. denied 99 N.Y.2d 657, 760 N.Y.S.2d 122, 790 N.E.2d 296 [2003] ).   Subsequently, defendant moved pursuant to CPL 440.20 to set aside his sentence, arguing that the imposition of a period of postrelease supervision was unauthorized and illegal because the crime to which he pleaded guilty was committed prior to September 1, 1998, the effective date of Penal Law § 70.45. County Court denied the motion without a hearing, prompting this appeal.

 Initially, given defendant's opportunity to challenge the legality of his sentence on his direct appeal and the availability of the facts and information relevant to this issue at that time, County Court's denial of defendant's motion was not improper (see People v. O'Hanlon, 13 A.D.3d 718, 719, 785 N.Y.S.2d 795 [2004] ).   Additionally, we discern no abuse of discretion in the court's denial of defendant's motion without a hearing.   Defendant failed to submit any evidence other than his own affidavit in support of his claim that the conduct to which he pleaded guilty occurred prior to September 1, 1998, rather than during “Summer, 1998”-which could include dates subsequent to September 1, 1998-as alleged in the indictment.   More importantly, the circumstances surrounding the case, as evidenced in the People's submissions, indicate that such conduct did indeed occur in September 1998 (see CPL 440.30[4][d];  People v. Sayles, 17 A.D.3d 924, 924-925, 794 N.Y.S.2d 160 [2005], lv. denied 5 N.Y.3d 794, 801 N.Y.S.2d 815, 835 N.E.2d 675 [2005] ).

ORDERED that the order is affirmed.

CARPINELLO, J.

CARDONA, P.J., PETERS, SPAIN and KANE, JJ., concur.