People v. Gonzalez

158 A.D.2d 615, 551 N.Y.S.2d 586, 1990 N.Y. App. Div. LEXIS 1969

Opinion

The defendant’s contention that the trial court erred in failing to give an identification charge is unpreserved for appellate review (see, CPL 470.05 [2]; People v Hattan, 149 AD2d 531) and, under the circumstances of this case, we decline to review it in the exercise of our interest of justice jurisdiction (cf., People v Chandler, 120 AD2d 542).

The court did not improvidently exercise its discretion in summarily denying the defendant’s motion to vacate the judgment of conviction. Many of the defendant’s allegations with respect to the claimed ineffectiveness of his trial counsel were based upon matters in the record which could have been raised on direct appeal (see, CPL 440.10 [2] [b]). Moreover, some of the matters which do not appear on the record were not supported by "sworn allegations substantiating or tending to substantiate all the essential facts” (CPL 440.30 [4] [b]), and as to the remaining allegations, the defendant failed to show "that the nonrecord facts sought to be established are material and would entitle him to relief’ (People v Satterfield, 66 NY2d 796, 799). Mollen, P. J., Brown, Kooper and Miller, JJ., concur.