People v. Polanco

Jun 12, 2008
Versions:52 A.D.3d 947
858 N.Y.S.2d 614

Carpinello, J.

Following an unsuccessful direct appeal (13 AD3d 904 [2004], lv denied 4 NY3d 802 [2005]), defendant moved to vacate his judgment of conviction pursuant to CPL 440.10 (1) alleging ineffective assistance of counsel. County Court properly denied the motion without a hearing. Most of the allegations of ineffective assistance of counsel pertain to claimed errors that could have been raised in the context of the direct appeal and are therefore not the proper subject of a CPL 440.10 motion (see CPL 440.10 [2] [c]; People v Nicholson, 50 AD3d 1397, 1399 [2008]). Defendant‘s claim that defense counsel failed to advise him of his right to decide whether to testify is unsubstantiated (see CPL 440.30 [4] [d]). The trial transcript established that defendant was well aware of his right to testify, that defendant decided not to testify, and that he and defense counsel had extensive and repeated conversations about the decision to rest without calling any witnesses (see CPL 440.30 [4] [c]).

Cardona, P.J., Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order is affirmed.