People v. LaDuca

13 A.D.3d 1107, 786 N.Y.S.2d 763, 2004 N.Y. App. Div. LEXIS 16346

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 2004
• Status: Published

Opinion

Appeal by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Ontario County Court (Craig J. Doran, J.), entered August 5, 2003. The order denied defendant’s motion pursuant to CPL article 440 to vacate the judgment convicting defendant of, inter alia, assault in the second degree.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed.

Memorandum:

Defendant appeals by permission from an order that denied his CPL 440.10 motion. County Court properly denied the motion without a hearing because “[a]n examination of the record and defendant’s moving papers reveals that the claimed ineffective assistance is nothing more than defendant’s dissatisfaction with trial tactics which terminated unsuccessfully” (People v Baptiste, 306 AD2d 562, 570 [2003], lv denied 1 NY3d 594 [2004]).

We also conclude that the court properly denied that part of the motion with respect to purported Brady/Rosario material because the issue raised therein could have been raised on direct appeal {see CPL 440.10 [2] [c]). Defendant’s remaining contentions are without merit. Present—Pigott, Jr., P.J, Pine, Scudder, Kehoe and Lawton, JJ.