People v. Batts

96 A.D.2d 842, 465 N.Y.S.2d 600, 1983 N.Y. App. Div. LEXIS 19433

Opinion

— Appeal by defendant (1) from a judgment of the Supreme Court, Kings County (Lentol, J.), rendered September 10, 1980, convicting him of murder in the second degree, attempted robbery in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence and (2) by permission, from an order of the same court (Booth, J.), dated March 12, 1981, denying defendant’s motion to vacate the judgment. Judgment affirmed. No opinion. Order affirmed. Criminal Term stated that its reason for denying defendant’s motion pursuant to CPL 440.10 to vacate the judgment of conviction was because defendant had failed to perfect his appeal from said judgment. However, defendant’s motion was based on a claim of ineffective assistance of counsel in which he alleged counsel failed to properly advise him of his right to testify before the Grand Jury. Generally, such a claim is not demonstrable on the record, and a postconviction motion is the proper vehicle in which it should be raised {People v Brown, 45 NY2d 852; People v Martin, 52 AD2d 988). Nevertheless, defendant’s motion was properly denied, because he failed to set forth sufficient grounds to justify granting him a hearing. Brown, J. P., Niehoff, Rubin and Boyers, JJ., concur.