Defendant Jason Bermudez ("Bermudez") moves pro se pursuant to CPL Section 440.10(h) to vacate a judgment dated September 26, 1994, convicting him, after a plea of guilty, of Manslaughter in the First Degree and Attempted Robbery in the First Degree, and sentencing him to consecutive prison terms of from eight to twenty-four years and from four and one-half to thirteen and one-half years, respectively. For the reasons set forth below, the motion is denied.

On February 17, 1994, Bermudez entered a plea of guilty to Manslaughter in the First Degree and Attempted Robbery in the First Degree. On March 8, 1994, Bermudez moved pro se pursuant to CPL Section 220.60(3) to withdraw his plea of guilty, alleging, among other things, that assigned counsel had pressured him to plead guilty. On April 11, 1994, new counsel was assigned, who thereafter subpoenaed Bermudez's medical records, which showed he was taking an anti-depressant called Sinequan when he pled guilty. New counsel did not know whether Sinequan might have impaired Bermudez's judgment when he had pled guilty, and so obtained an order from the court to secure the services of a pharmacologist to learn the potential side-effects, if any, of taking Sinequan. It is not clear whether counsel ever retained a pharmacologist. On September 26, 1994, however, counsel represented to the court that Sinequan would not have prevented Bermudez from understanding what was happening during the plea. The court then denied Bermudez's pro se motion, which had been adopted by counsel, and sentenced Bermudez. The foregoing is set forth in the record, and the relevant pages of the transcript are annexed as exhibits to Bermudez's motion.

Bermudez claims that the judgment of conviction should be set aside on the grounds that he received ineffective assistance of counsel due to counsel's failure to retain a pharmacologist in connection with his motion to withdraw the guilty plea. Bermudez also claims that his counsel had a "conflict of interest" because he represented to the court that Sinequan would not have affected Bermudez's ability to plea guilty.

The Court "must deny" a motion to vacate a judgment where the "ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment . . [*2]." CPL § 440.10(2)(a). That is the case here. Bermudez appealed the conviction, claiming that the trial court erred when it denied the motion to withdraw his plea and that Sinequan could have compromised his ability to knowingly and voluntarily plead guilty. See Affirmation of ADA Noah J. Chamoy sworn to June 21, 2007, Ex. 2 at 2, 15. Bermudez also argued that his counsel's statement regarding Sinequan "was no substitute for expert testimony on the subject" and that this failure meant that "defense counsel did not meaningfully represent Appellant's interests." Id. at 15 n. 3.

The First Department rejected these claims, holding that:

The record of the plea proceedings demonstrates that . . . . defendant chose to plead guilty to avail himself of a substantially lower sentence and that the plea was knowingly and voluntarily entered. . . . . [Defendant] admitted to shooting one victim and attempting to rob another . . . In light of these admissions, there was no need for the court to conduct a further hearing on his motion to withdraw the plea. . . . Defendant's claim of mental impairment during the plea proceedings caused by anti-depressant medication is also unsupported. The record shows that defendant was lucid, rational and unequivocal in assuring the court on numerous occasions during the plea colloquy that he fully comprehended the meaning of the plea proceeding.

People v. Bermudez, 228 AD2d 237, 237 (1st Dept.), appeal denied, 89 NY2d 919 (1996) (citations omitted and emphasis added).

As noted above, on appeal the First Department held that no further hearing on the motion to withdraw the plea was required. Accordingly, it could not have been error for counsel to fail to retain a pharmacologist in connection with the motion to withdraw the plea. Since Bermudez has previously appealed the judgment of conviction on the same grounds and issues as are raised in the current motion, the motion is denied pursuant to CPL Section 440.10(2)(a).

The foregoing constitutes the Decision and Order of the Court.

Dated:August 20, 2007

Bronx, New York________________________

Joseph J. Dawson, A.S.C.J.