| People v Lard |
| 2010 NY Slip Op 02274 [71 AD3d 1468] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Lonnie Lard,Also Known as Lonnie Anthony, Appellant. (Appeal No. 2.) |
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Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in theFourth Judicial Department, from an order of the Erie County Court (Sheila A. DiTullio, J.),entered November 26, 2008. The order denied defendant's motion pursuant to CPL 440.10 tovacate the judgment convicting defendant of attempted assault in the first degree and criminalpossession of a weapon in the third degree.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Defendant appeals, with permission of a Justice of this Court, from an orderdenying his CPL 440.10 motion to vacate the judgment convicting him of attempted assault inthe first degree (Penal Law §§ 110.00, 120.10 [1]) and criminal possession of aweapon in the third degree (§ 265.02 [4]). On a prior appeal, we reversed the orderdenying his motion to vacate the judgment, determining that his "contention pursuant to CPL440.10 (1) (a), i.e., that the superior court information was jurisdictionally defective, may havemerit" (People v Lard, 45 AD3d1331, 1332 [2007]). We noted that County Court had rejected that contention on the groundthat sufficient facts appeared on the face of the record to have permitted appellate review on adirect appeal, thereby requiring denial of the motion pursuant to CPL 440.10 (2) (c) based ondefendant's unjustifiable failure to take a timely appeal. We were unable to discern on the recordbefore us whether the failure of defendant or defense counsel to take a timely appeal wasjustifiable, however, and we therefore reversed the order and remitted the matter to County Courtfor a hearing on that issue (id. at 1332-1333). Contrary to the contention of defendant,the court did not abuse its discretion in again denying his motion following the hearing. Therewas conflicting testimony on the issue whether defendant notified defense counsel that hewished to take an appeal from the judgment of conviction within the statutory period, and thecourt was entitled to resolve that issue against defendant. "The court's credibility determinationis entitled to great weight . . . , and we perceive no basis for reversal on the recordbefore us" (People v Smith, 16AD3d 1081, 1082 [2005], lv denied 4 NY3d 891 [2005]; see generally People vDukes, 106 AD2d 906 [1984]). Present—Smith, J.P., Fahey, Carni, Sconiers and Pine,JJ.