831 N.Y.S.2d 341 | N.Y. App. Div. | 2007
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]).