| People v Pacheco |
| 2008 NY Slip Op 03673 [50 AD3d 1063] |
| April 22, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JavierPacheco, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Solomon Neubortof counsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County(Guzman, J.), dated June 30, 2006, which denied, without a hearing, his motion pursuant to CPL440.10 to vacate a judgment of the same court (Barbaro, J.), rendered January 10, 2001,convicting him of murder in the second degree and criminal possession of a weapon in the thirddegree, upon a jury verdict, and imposing sentence.
Ordered that the order is affirmed.
The defendant's claim regarding ineffective assistance of trial counsel could have been raisedon direct appeal from the judgment of conviction (see CPL 440.10 [2] [a], [c]). In anyevent, the claim is without merit because the defendant did not establish that counsel'srepresentation was deficient (see People v Baldi, 54 NY2d 137 [1981]). Specifically, thedefendant did not establish that counsel was deficient in failing to move to dismiss the countcharging him with depraved indifference murder on the ground that the facts supported a findingof intent rather than recklessness since, at the time of the trial, counsel was acting in accord withthe law defining depraved indifference murder (see People v Danielson, 9 NY3d 342, 350 [2007]; People vPaisley, 93 NY2d 1024 [1999]). Mastro, J.P., Santucci, Eng and Belen, JJ., concur.