People v. Epps, 831 N.Y.S.2d 341

People v. Epps

831 N.Y.S.2d 341

N.Y. App. Div.

2007

Check Treatment

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v DARNELL EPPS, Appellant.

[831 NYS2d 341]

Appellate Division of the Supreme Court of the State of New York, Second Department

831 N.Y.S.2d 341

Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Reichbach, J.), dated August 1, 2005, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court dated November 15, 2000, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the order is affirmed.

Contrary to the defendant‘s contention, People v Payne (3 NY3d 266 [2004]) and People v Suarez (6 NY3d 202 [2005]) do not apply retroactively (see Policano v Herbert, 7 NY3d 588 [2006]; People v Pepper, 53 NY2d 213, 221 [1981]). Even under the standard espoused in People v Hafeez (100 NY2d 253 [2003]), which was decided after this Court rendered its decision and order on the defendant‘s direct appeal (see People v Epps, 305 AD2d 697 [2003]) but before his conviction became final (see Policano v Herbert, supra), the evidence was legally sufficient to establish the defendant‘s guilt beyond a reasonable doubt (see People v Vaughn, 2 AD3d 656 [2003]; People v Marsh, 140 AD2d 631 [1988]).

The defendant‘s remaining claims regarding alleged ineffective assistance of trial counsel are procedurally barred (see CPL 440.10 [2] [a], [c]).

Rivera, J.P., Santucci, Angiolillo and Dickerson, JJ., concur.