| People v Lebron |
| 2015 NY Slip Op 04148 |
| Decided on May 13, 2015 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on May 13, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
L. PRISCILLA HALL, J.P.
SANDRA L. SGROI
ROBERT J. MILLER
SYLVIA O. HINDS-RADIX, JJ.
2013-04998
(Ind. No. 207/06)
v
Armando Lebron, appellant.
Lynn W. L. Fahey, New York, N.Y. (Tammy Linn of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Jennifer Hagan of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County (Buchter, J.), dated April 15, 2013, which, upon a decision of the same court dated April 15, 2013, denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court rendered January 12, 2009, convicting him of murder in the second degree (two counts) and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the order is affirmed.
By judgment rendered January 12, 2009, the defendant was convicted of murder in the second degree (two counts) and criminal possession of a weapon in the fourth degree. He appealed from the judgment, arguing, among other things, that he was denied the effective assistance of counsel. This Court affirmed the judgment (see People v Lebron, 87 AD3d 1162). Thereafter, the defendant moved pro se pursuant to CPL 440.10 to vacate the judgment on the ground that he was denied the effective assistance of counsel. The Supreme Court denied the motion without a hearing.
CPL 440.10 "provides that a court must deny' a motion to vacate a judgment of conviction when the ground or issue raised was previously determined on the merits upon an appeal from the judgment' or there were sufficient facts on the record which would have permitted appellate review of the issue on direct appeal but no review occurred owing to the defendant's unjustifiable failure to perfect a direct appeal or raise the issue on direct appeal" (People v Hamilton, 115 AD3d 12, 20, quoting CPL 440.10; see CPL 440.10[2][a], [c]; People v DiGuglielmo, 75 AD3d 206, 211, affd 17 NY3d 791).
The claims of ineffective assistance of counsel raised by the defendant in his motion pursuant to CPL 440.10 were either raised on his direct appeal from the judgment and determined on the merits, or could have been raised on his direct appeal from the judgment (see People v Rauf, 111 AD3d 492, 493; People v Cochrane, 27 AD3d 659, 660). The defendant offered no justification for failing to raise some of his present claims on his direct appeal from the judgment. To the extent [*2]that his motion alleged ineffective assistance of counsel based on a fact outside the record, the defendant failed to demonstrate that that fact, in and of itself, was material and, if established, would entitle him to relief (see People v Trombley, 91 AD3d 1197, 1203, citing People v Satterfield, 66 NY2d 796, 799; cf. People v Mosley, 121 AD3d 1169, 1174). Accordingly, the Supreme Court properly denied the motion without a hearing.
HALL, J.P., SGROI, MILLER and HINDS-RADIX, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court