Defendant, pro se, makes this motion to vacate the judgment of conviction, pursuant to CPL § 440.10 and to set aside his sentence, pursuant to CPL § 440.20.

Defendant was indicted by a Queens Grand Jury for criminal sale of a controlled substance in the third degree. After a jury trial, defendant was found guilty as charged and he was sentenced to an indeterminate prison term of from twelve and a half to twenty-five years. Defendant appealed and the Appellate Division, Second Department, affirmed the conviction (see, People v Ali, 292 AD2d 538). Defendant sought leave to appeal to the Court of Appeals and the application for leave was denied (see, People v Ali, 98 NY2d 729).

Defendant now argues in support of this motion, inter alia, that: he was denied his right to appear before the grand jury; trial counsel was ineffective for failing to contest inaccuracies in defendant's presentence report; the Wade hearing was fraudulent; and the suppression court committed reversible error; defendant is illegally incarcerated; the sentence was excessive and should be reduced based on the Drug Reform Act; defendant was illegally sentenced as a second felony offender; the presentence investigation report is inaccurate; Justices Kohm and Schulman should be barred from hearing or deciding any issues concerning this case as they are prejudiced; the District Attorney and the court lack jurisdiction over this case.

There is no merit to defendant's arguments.

A motion to vacate a judgment of conviction must be denied if there are sufficient facts on the record to have allowed adequate review of the issue on direct appeal but no such appellate determination occurred because defendant unjustifiably failed to raise the issue on appeal (CPL 440.10[2][c]). Also, a motion to vacate a judgment of conviction must be denied if the issue was previously determined on the merits upon an appeal of the judgment (CPL § 440.10[2][a]).

A motion to vacate a judgment of conviction should not be "employed as a substitute for direct appeal" when defendant was in a position to raise the issue on appeal, but failed to do so (People v Cooks, 67 NY2d 100, 103).

A judgment of conviction is presumed to be valid. This presumption of regularity exists until contrary substantiating evidence appears. The party challenging the validity has the burden of coming forward with sufficient allegations to create an issue of fact (People v Richetti, 302 [*2]NY 290). Sufficient evidentiary facts must be alleged in order to raise a triable issue of fact sufficient to challenge the presumed validity of a judgment of conviction. Bare allegations are insufficient to carry this evidentiary burden. It is not enough to make conclusory allegations. Supporting facts must be provided (see, CPL 440.30(4)(d); People v Brown, 56 NY2d 242; People v Session, 34 NY2d 254).

Defendant's claims are all based on conclusory statements, unsupported by sufficient affidavits or other evidence (see, CPL § 440.30[1], CPL 440.30[4][d]; People v Brown, supra; People v Session, supra). Defendant has not met his burden of creating an issue of fact.

Defendant's claim that the indictment was unconstitutional because he was denied his right to testify before the grand jury must be denied. Defendant raised this claim in his appeal and the Appellate Division rejected the claim (see, CPL § 440.10(2)(a).

Defendant's further claims that defense counsel was ineffective has no merit. The Court finds that defendant failed to sustain his burden of proving that there were inaccuracies in his presentence report and that counsel was ineffective (see, People v Flores, 84 NY2d 184; People v Baldi, supra; People v DeFreitas, 213 AD2d 96; People v Hamlin, 153 AD2d 644).

Defendant is attempting to use this motion to vacate the judgment of conviction as a method of appeal. However, this motion may not be used as a vehicle for an additional appeal (People v Howard, 12 NY2d 65, cert denied 374 US 840; People v Shapiro, 3 NY2d 203; People v Silverman, 3 NY2d 200; People v Balsamo, 11 AD2d 1040).

Section 440.20(1) of the Criminal Procedure Law provides that upon motion of the defendant the court may set aside the sentence if it was unauthorized, illegally imposed or otherwise invalid as a matter of law. However, in this case, defendant was properly sentenced and the sentence was valid as a matter of law.

When a sentence of imprisonment is imposed, and that sentence is in accordance with law, the sentence may not be changed, suspended or interrupted once the term or period of the sentence has commenced (CPL 430.10).

Defendant does not fit the eligibility requirement for resentencing under the Drug Law Reform Act. He was convicted of a class "B" felony; with a sentence that did not include a maximum term of imprisonment of life; the crime was committed before the drug reform statute's effective date, and the judgment of conviction is final (see, People v Pauly, 21 AD3d 595 [3rd Dept]).

The prior felony conviction which was the basis for the second violent felony offender sentence was a 1994 conviction for criminal possession of stolen property in the fourth degree, a class E felony (see, Penal Law § 70.06). Defendant was, therefore, properly sentenced as a second violent felony offender.

Based on the foregoing, the motion to vacate the judgment of conviction and to set aside the sentence is denied.

Order entered accordingly.

The clerk of the court is directed to mail a copy of this decision and order to the defendant at his place of incarceration and to the District Attorney.

Dated: April 12, 2006

ROBERT CHARLES KOHM, J.S.C. [*3]

APPEARANCES OF COUNSEL