| People v Mastowski |
| 2009 NY Slip Op 04517 [63 AD3d 1589] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DexterMastowski, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in theFourth Judicial Department, from an order of the Ontario County Court (Craig J. Doran, J.),entered January 28, 2008. The order denied the motion of defendant pursuant to CPL 440.10seeking to vacate the judgment convicting him of assault in the first degree.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: On appeal from an order denying his motion pursuant to CPL 440.10 seekingto vacate the judgment convicting him of assault in the first degree (Penal Law § 120.10[3] [depraved indifference]), defendant contends that the changes in the law concerning depravedindifference effectuated by People vFeingold (7 NY3d 288 [2006]) render his conviction void for failure to prove everyelement of the charge. Even assuming, arguendo, that defendant is entitled on collateral reviewto the application of the objective standard of depraved indifference set forth inFeingold, we would nonetheless conclude that the evidence is legally sufficient tosupport the conviction (see People vJean-Baptiste, 11 NY3d 539, 542 [2008]; People v Jeffries, 56 AD3d 1166, 1167 [2008], lv denied12 NY3d 759 [2009]; People vBowman, 48 AD3d 178, 183-186 [2007], lv denied 10 NY3d 808 [2008]). Thefurther contention of defendant in support of his motion, i.e., that he did not receive effectiveassistance of counsel, is equally unavailing. The alleged instances of ineffective assistance eitherwere or could have been raised on direct appeal (see CPL 440.10 [2] [a], [c]; People v Vigliotti, 24 AD3d 1216,1216-1217 [2005]). We have considered defendant's remaining contention and conclude that it iswithout merit. Present—Scudder, P.J., Hurlbutt, Peradotto, Green and Gorski, JJ.