| People v Leader |
| 2014 NY Slip Op 02627 [116 AD3d 1239] |
| April 17, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vDarnell Leader, Also Known as John Neeley, Appellant. |
—[*1] Arthur Glass, Acting District Attorney, Troy (Kelly L. Egan of counsel), forrespondent.
Lahtinen, J.P. Appeal, by permission, from an order of the County Court ofRensselaer County (Ceresia, J.), entered May 1, 2012, which denied defendant's motionpursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of murderin the second degree and criminal possession of a weapon in the second degree, without ahearing.
Defendant was convicted of murder in the second degree and criminal possession ofa weapon in the second degree in May 1999 and was thereafter sentenced to an aggregateprison term of 25 years to life. His conviction was affirmed by this Court on direct appeal(285 AD2d 823 [2001], lv denied 97 NY2d 758 [2002]) where issues assertedincluded, among others, that the verdict was against the weight of the evidence and hewas denied the effective assistance of counsel (id. at 824-825). Over 10 yearsafter our decision, in December 2011, defendant moved pursuant to CPL 440.10 tovacate the judgment of conviction, again contending that he received ineffectiveassistance of counsel. He premised this contention on an alleged single error by trialcounsel in failing to raise an issue as to whether the pre-voir dire oath was properlyadministered to the jurors (see CPL 270.15 [1] [a]; see also People v Hoffler, 53AD3d 116, 120-121 [2008], lv denied 11 NY3d 832 [2008]; People vMelendez, 205 AD2d 392, 393 [1994], lv denied 84 NY2d 829 [1994]).County Court denied the motion without a hearing and defendant, by permission,appeals.[*2]
We affirm. The alleged single error now assertedto support his present claim of ineffective assistance of counsel would have been knownto defendant at the time of his prior appeal a decade earlier. Thus, to the extent thatdefendant's argument is based on his attorney's failure to object when a pre-voir dire oathwas not set forth at the appropriate point in the trial, as is allegedly reflected by the fourpages of transcript that defendant annexed to his affidavit, such argument could havebeen raised as part of the ineffective assistance of counsel argument already made on hisdirect appeal (see CPL 440.10 [2] [a], [c]).[FN*] Moreover, to the extent that he contends that some matters not appearing in the recordmight have been implicated since it apparently had been the procedure in some courts toadminister the oath to the prospective jury pool before they entered the courtroom(see People v Hoffler, 53 AD3d at 121), defendant's motion was properly deniedwithout a hearing because his claim in such regard was unsupported by any relevantevidence other than his own affidavit (see CPL 440.30 [4] [d]; People v Vallee, 97 AD3d972, 974 [2012], lv denied 20 NY3d 1104 [2013]; People v Moret,35 Misc 3d 1205[A], 2012 NY Slip Op 50559[U] [Sup Ct, Bronx County 2012]).
Stein, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed.
Footnote *: Notably, defendantraised the issue of whether trial counsel was ineffective for failing to object to theapparent lack of an oath in a prior, unsuccessful application for a writ of coram nobis.