People v. Pacheco

Apr 22, 2008
Versions:50 A.D.3d 1063
855 N.Y.S.2d 676

Ordered that the order is affirmed.

The defendant‘s claim regarding ineffective assistance of trial counsel could have been raised on direct appeal from the judgment of conviction (see CPL 440.10 [2] [a], [c]). In any event, the claim is without merit because the defendant did not establish that counsel‘s representation was deficient (see People v Baldi, 54 NY2d 137 [1981]). Specifically, the defendant did not establish that counsel was deficient in failing to move to dismiss the count charging him with depraved indifference murder on the ground that the facts supported a finding of intent rather than recklessness since, at the time of the trial, counsel was acting in accord with the law defining depraved indifference murder (see People v Danielson, 9 NY3d 342, 350 [2007]; People v Paisley, 93 NY2d 1024 [1999]). Mastro, J.P., Santucci, Eng and Belen, JJ., concur.