People v Polanco

2008 NY Slip Op 05392

Decided on June 12, 2008

Appellate Division, Third Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: June 12, 2008
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Calendar Date: May 2, 2008
Before: Cardona, P.J., Spain, Carpinello, Malone Jr. and Kavanagh, JJ.


Mathew B. Tully, Albany, for appellant, and appellant
pro se.
P. David Soares, District Attorney, Albany (Brett M.
Knowles of counsel), for respondent.

MEMORANDUM AND ORDER


Carpinello, J.

Appeal, by permission, from an order of the County Court of Albany County (Breslin, J.), entered April 19, 2006, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of attempted murder in the second degree, kidnapping in the second degree, robbery in the first degree (two counts), robbery in the second degree, assault in the first degree, criminal use of a firearm in the first degree and criminal possession of a weapon in the third degree, without a hearing.

Following an unsuccessful direct appeal (13 AD3d 904 [2004], lv denied 4 NY3d 802 [2005]), defendant moved to vacate his judgment of conviction pursuant to CPL 440.10 (1) alleging ineffective assistance of counsel. County Court properly denied the motion without a hearing. Most of the allegations of ineffective assistance of counsel pertain to claimed errors that could have been raised in the context of the direct appeal and are therefore not the proper subject of a CPL 440.10 motion (see CPL 440.10 [2] [c]; People v Nicholson, 50 AD3d 1397, ___, 856 NYS2d 290, 292 [2008]). Defendant's claim that defense counsel failed to advise him of his right to decide whether to testify is unsubstantiated (see CPL 440.30 [4] [d]). The trial transcript establishe that defendant was well aware of his right to testify, that defendant decided not to testify, and that he and defense counsel had extensive and repeated conversations about the [*2]decision to rest without calling any witnesses (see CPL 440.30 [4] [c]).

Cardona, P.J., Spain, Malone Jr. and Kavanagh, JJ., concur.

ORDERED that the order is affirmed.