People v. Kotler

271 A.D.2d 548, 705 N.Y.S.2d 900, 2000 N.Y. App. Div. LEXIS 3996

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 2000
• Status: Published

Opinion

—Appeal by the defendant, by permission, from an order of the County Court, Suffolk County (Weissman, J.), dated June 1, 1998, which denied, without a hearing, the defendant’s motion pursuant to CPL 440.10 to vacate a judgment of the same court, rendered October 23, 1997, convicting him of rape in the first degree, upon a jury verdict, and imposing sentence.

Ordered that on the Court’s own motion, pages 213 to 234 of the defendant’s Appendix are stricken and the matters contained in that portion of the Appendix have not been considered as they relate to matters dehors the record; and it is further,

Ordered that the order is affirmed.

The County Court properly denied the defendant’s motion to vacate the judgment of conviction pursuant to CPL 440.10. The defendant’s claims cannot be raised in a motion pursuant to CPL 440.10 as a substitute for direct appeal (see, CPL 440.10 [2] [b], [c]; People v Cooks, 67 NY2d 100). Bracken, J. P., O’Brien, Sullivan and Luciano, JJ., concur.