Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Erie County Court (Sheila A. DiTullio, J.), entered August 19, 2005. The order denied the motion of defendant pursuant to CPL 440.10 to vacate the judgment convicting him of assault in the first degree and robbery in the first degree.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed. Present—Centra, J.P, Lunn, Peradotto and Pine, JJ.