810 N.Y.S.2d 670 | N.Y. App. Div. | 2006
Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Dowling, J), dated November 26, 2003, which denied, without a hearing, his motion pursuant to CPL 440.10
Ordered that the order is affirmed.
The claims of ineffective assistance of trial counsel that the defendant raises in this, his third motion pursuant to CPL 440.10 to vacate his judgment of conviction, either could have been raised on his direct appeal from the judgment (see People v Cochrane, 248 AD2d 396 [1998]), or in one of his two prior motions. To the extent the defendant’s claims concern matters appearing on the record, and thus could have been raised on his direct appeal, the Supreme Court’s summary denial of the defendant’s motion without a hearing was mandated (see CPL 440.10 [2] [c]; People v Jossiah, 2 AD3d 877 [2003]). To the extent the defendant’s contentions concern matter dehors the record, they could have been raised on either one of his two previous CPL 440.10 motions, and thus the Supreme Court’s denial of the current motion without a hearing was within its discretion, which we conclude was providently exercised (see CPL 440.10 [3] [c]; People v Dover, 294 AD2d 594, 596 [2002]). In any event, the defense that the defendant’s trial counsel presented to the jury constituted a reasonable defense strategy. Florio, J.P., Miller, Goldstein and Lunn, JJ., concur.