| People v Bruno |
| 2012 NY Slip Op 05677 [97 AD3d 986] |
| July 19, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v James Bruno,Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Michael R. Stern of counsel), forrespondent.
Kavanagh, J. Appeal, by permission, from an order of the County Court of WashingtonCounty (McKeighan, J.), entered April 27, 2011, which denied defendant's motion pursuant toCPL 440.10 to vacate the judgment convicting him of the crimes of burglary in the third degree,burglary in the second degree, possession of burglar's tools, criminal mischief in the fourthdegree (two counts), petit larceny and criminal possession of stolen property in the fourth degree(two counts), without a hearing.
Following a jury trial, defendant was convicted of burglary in the second and third degrees,possession of burglar's tools, criminal mischief in the fourth degree (two counts), petit larcenyand criminal possession of stolen property in the fourth degree (two counts). After this Courtaffirmed the judgment on direct appeal (People v Bruno, 63 AD3d 1297 [2009], lv denied 13 NY3d858 [2009]), defendant moved pursuant to CPL 440.10 to vacate the judgment alleging thatCounty Court erred when it ordered that he be placed in a leg brace during his trial and that hewas deprived of the effective assistance of counsel when counsel failed to object to the leg braceand did not move to suppress certain evidence. County Court denied the motion without ahearing and defendant now appeals with permission of this Court.
"[T]he purpose of a CPL article 440 motion 'is to inform a court of facts not reflected in[*2]the record and unknown at the time of the judgment. . . [and] . . . cannot be used as a vehicle for an additional appeal' "(People v Berezansky, 229 AD2d 768, 771 [1996], lv denied 89 NY2d 919[1996], quoting People v Donovon, 107 AD2d 433, 443 [1985], lv denied 65NY2d 694 [1985]; accord People v Saunders, 301 AD2d 869, 870 [2003], lvdenied 100 NY2d 542 [2003]). Such a motion must be denied when "sufficient facts appearon the record of the proceedings underlying the judgment" that would have permitted on directappeal an "adequate review of the ground or issue raised upon the motion, [and] no suchappellate review or determination occurred owing to the defendant's . . . failure toraise such ground or issue upon an appeal actually perfected by him [or her]" (CPL 440.10 [2][c]). Here, sufficient facts appear in the record before County Court to have permitted a reviewon direct appeal of defendant's claim that he did not receive the effective assistance of counseland that County Court committed reversible error by requiring him to wear a leg brace at his trial.Since defendant failed to raise these issues during his direct appeal, they are not the propersubject of a CPL article 440 motion (see CPL 440.10 [2] [c]; People v Stevens, 95 AD3d 1451,1453 [2012]; People v Polanco, 52AD3d 947, 947 [2008], lv denied 11 NY3d 793 [2008]; People v Saunders,301 AD2d at 871). As such, County Court's denial of his motion without a hearing is affirmed.
Mercure, J.P., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed.