On March 22, 1993, defendant entered guilty pleas before the Honorable Vincent A. Vitale to one count of Murder in the Second Degree and one count of Burglary in the Second Degree in full satisfaction of Indictment Nos. 5753/91 and 3223/92, respectively. During the allocution on the murder count under the first indictment, defendant admitted that, on May 20, 1991, he and several cohorts, including his own son, broke into a home on Bainbridge Avenue in the Bronx with intent to steal property. Although he initially denied being "the trigger man," defendant admitted that one of the participants in the burglary shot and killed Mr. Mei, one of the owners of the home. After defendant denied that he or his son had shot Mr. Mei and claimed not to know the name of the gunman, the People announced that the allocution was not acceptable to them. Defendant subsequently stated, "[t]o satisfy the record," that he had shot the victim. The Court then asked directly whether defendant had shot and killed Mr. Mei; defendant replied, "I guess, yes." See Minutes, March 22, 1993, at pp. 9-14. During the factual allocution regarding the burglary count under the second indictment, defendant admitted that on January 22, 1991, he entered and remained inside a home on Saxon Avenue in the Bronx with the intent to steal property and without permission of the owner. See id. at pp. 14-15. The promised sentence was a term of from 18 years to life on the murder count and a concurrent term of from seven and one-half to fifteen years on the burglary count. See id. at 16-18.

On April 15, 1993, defense counsel stated that defendant wanted to withdraw his guilty plea. When the Court asked for the basis upon which defendant wished to withdraw the plea, counsel replied, "He hasn't told me what ground, Judge." The Court denied the application. See Minutes, April 15, 1993, at p. 2. Defendant was then adjudicated a predicate felony offender. After Mrs. Mei, the murder victim's widow, delivered a statement, the Court heard from the attorneys for both sides and from the defendant himself. The Court then sentenced defendant to the promised concurrent prison terms of from 18 years to life under Indictment No. 5753/91 and seven and one-half to fifteen years under Indictment No. 3223/92. See id. at 3-16. The sentencing judge then told defendant that "if anyone sends me a letter concerning your possible release on parole, in view of everything that transpired here and in view of the viciousness of your crime and the influence you exerted on your young son and the tragedy you [*2]caused to [the victim's widow], I would recommend[] to the parole commissioner you not be released at the end of eighteen years. Whoever reads this record in the years to come, [I] hope that they follow that recommendation that I am now making." See id. at 17-18.

On appeal to the Appellate Division, First Department, defendant urged that the statement made at the conclusion of the sentencing proceeding improperly altered the promise that had induced the guilty plea. This being the case, the defense argued, the court should have afforded defendant an opportunity to withdraw his plea. See Defendant's Appellate Brief, annexed to Affirmation of Jean Soo Park, dated Feb. 6, 2007, at Exhibit 1.

Defendant's conviction was affirmed by the Appellate Division, First Department, and leave to appeal to the Court of Appeals was subsequently denied. See People v. Saldana, 221 AD2d 239 (1st Dept. 1995), appeal denied, 87 NY2d 1024 (1996). Several years later, the Appellate Division, First Department, denied an application by defendant for a writ of error coram nobis. See People v. Saldana, 253 AD2d 1004 (1st Dept. 1998). Finally, in September 2000, the Honorable Denny Chin denied defendant's application for federal habeas corpus relief. See Saldana v. Artuz, 2000 WL 1346855 (S.D.NY Sept. 19, 2000).

Defendant now moves for relief, pursuant to Section 440.10, in the above matters.^[FN1] To the extent that defendant challenges the sentencing judge's decision to recommend against release on parole at the end of defendant's minimum term of imprisonment, the Appellate Division, First Department, has already rejected that complaint on direct appeal from the conviction. See People v. Saldana, 221 AD2d 239 (1st Dept. 1995), appeal denied, 87 NY2d 1024 (1996). This Court, therefore, must reject that claim. See CPL § 440.10[2][a].

The Court also is required to reject defendant's claim that, in light of his responses during the factual allocution concerning the shooting, the sentencing judge should have held a hearing on the motion to withdraw the guilty plea. Because sufficient facts appeared on the record of the sentencing proceeding itself to permit adequate review of that claim on direct appeal [see, e.g., People v. Tinsley, 35 NY2d 926 (1974); People v. Latham, 36 AD3d 553 (1st Dept. 2007); People v. Sanchez, 29 AD3d 308 (1st Dept.), appeal denied, 7 NY3d 762 (2006)], this Court is not permitted to consider it under Section 440.10. See CPL § 440.10[2][c]; People v. Cuadrado, 2007 WL 446358, 2007 Slip Op. 01197, N.Y.L.J., 2/15/07, p. 24, col. 1 (1st Dept. Feb. 15, 2007) ("Whenever any of the circumstances specified in CPL 440.10(2) obtain, the Legislature's mandate is clear: the courts must deny' the motion.").

For these reasons, defendant's motion is denied in all respects. The foregoing constitutes the Decision and Order of this Court.

Dated:March 9, 2007

Bronx, New York

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Joseph J. Dawson, A.S.C.J. [*3]