On July 8, 1981, defendant was convicted after a jury trial of Murder in the Second Degree (PL 125.25). Judgment was entered against the defendant in Supreme Court, Bronx County, (Levy, J.), on October 26, 1981, having been sentenced to a life term of imprisonment with a mandatory minimum period of twenty years. By motion submitted April 9, 2010, defendant moves pro se to set aside his sentence pursuant to Criminal Procedure Law § 440.20 on the grounds that the pre-sentence investigation report, which the court relied upon in imposing his sentence, inaccurately indicated that he was unwilling to cooperate with the Department of Probation and used a rifle to commit the murder. For the reasons stated below, defendant's motion is denied.

CPL 440.20 provides that "[a]t any time after the entry of a judgment, the court in which the judgment was entered may, upon motion of the defendant, set aside the sentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law" (CPL 440.20 [1]). Inaccurate statements in a pre-sentence report do not, by their mere presence, render a sentence illegal or otherwise invalid where such statements had no effect on the imposition of [*2]that sentence (People v Campo, 308 AD2d 406 [1st Dept 2003]). Even where an inaccuracy may adversely affect a defendant's eligibility for parole, nothing contained in CPL 440.20 provides vacating the sentence as a remedy (Campo at 407). Moreover, since the defendant neither objected to the pre-sentence report nor sought an adjournment for the preparation of a new one at the time of sentencing, his challenge to the purported inaccuracies are untimely (see People v Karlas, 208 AD2d 767 [2d Dept 1994]).

Here, Justice Levy sentenced defendant Delano Brown to a term of life imprisonment with a mandatory minimum period of twenty years "based on the nature of the crime and based on the fact that Mr. Brown was the one who did the shooting according to what the Jury found" and because it did not find "any mitigating circumstances" (Defendant's Exhibit B, p. 13). As the People correctly note in their affirmation in opposition, Justice Levy made no mention of defendant's lack of willingness to cooperate with the Department of Probation or use of a rifle when imposing the sentence. Indeed, "the court's remarks indicate that it was not improperly influenced by any of the challenged statements in the report" (Karlas at 767).

Accordingly, it appears the statements regarding the nature of the murder weapon and defendant's unwillingness to cooperate with the Department of Probation contained in the pre-sentencing investigation report, even if inaccurate as the defendant claims, were not considered by the sentencing court and in no way affected sentencing. For the same reason, defendant's argument that the pre-sentence investigation report also inaccurately states the deceased's time of death was 6:30 AM on the morning after the shooting because the trial record indicated that three physicians provided disparate accounts of the time of death is equally unpersuasive. Having concluded as such, this court must deny defendant's motion.

Notably, defendant, in his reply to the People's affirmation in opposition, asserts several claims not raised in his notice of motion or affirmation in support that are well beyond the scope of this CPL 440.20 motion. Indeed, these claims appear to be the subject of a CPL 440.10 motion: 1) that the prosecution's witnesses were under the influence of drugs at the time of the crime, and no credible non-drug using witnesses testified on behalf of the prosecution; 2) that defense counsel was aware of hearsay evidence presented to the grand jury but failed to address the issue thus providing ineffective assistance of counsel; 3) that the record indicates three physicians recorded different times of death for the thus casting doubt as to the cause of death; and 4) that the trial court improperly amended the indictment at the conclusion of the case.

Even if this court were inclined to consider these claims, which it is not, they would nevertheless be procedurally barred since they appear to have properly been included in either his direct appeal or subsequent CPL 440.10 motion. Defendant previously brought a direct appeal to the Appellate Division, which the First Department unanimously affirmed on September 15, 1987, (see People v Brown, 133 AD2d 550 [1st Dept 1987]). On March 1, 1991, the Court of Appeals denied defendant leave to appeal (People v Brown, 71 NY2d 893 [1988]). Moreover, on May 22, 1991, defendant brought a CPL 440.10 motion, which was denied by Judge David Levy, and unanimously affirmed by the Appellate Division on October 5, 1993 (see People v Brown, 197 AD2d 362 [1st Dept 1993]). Consequently, whether or not such claims are record-based, he would nevertheless be procedurally barred from asserting them in a subsequent CPL 440.10 motion.

Having concluded that the sentencing court did not take into account the inaccurate [*3]statements made in the pre-sentence investigation report, defendant's motion to set-aside his sentence pursuant to CPL § 440.20 is in all respects denied.

This constitutes the decision and order of the court.

The clerk of the court is directed to forward a copy of this decision to the defendant at his place of incarceration.

Dated:June 24, 2010

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Richard Lee Price, J.S.C.