APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered May 25, 2010. The Appellate Division (1) reversed, on the law, so much of an order of the Westchester County Court (Rory J. Bellantoni, J.; op 21 Misc 3d 1103[A], 2008 NY Slip Op 51938[U]), as had granted that branch of defendant's motion which was pursuant to CPL 440.10 to vacate a judgment of that court (Peter M. Leavitt, J), which had convicted defendant, upon a jury verdict, of murder in the second degree, (2) denied the CPL 440.10 motion, (3) reinstated the judgment, and (4) remitted the matter to County Court with directions to promptly direct defendant to surrender himself to that court in order that execution of the judgment may resume.

In 1997, the defendant, an off-duty police officer, was convicted of depraved indifference murder for fatally shooting the victim outside of a store owned by his parents. At trial, defendant had proffered a justification defense, contending that he shot the victim, whom defendant and others had just beaten in a dispute over a parking space, as the victim was about to strike the defendant's father with a baseball bat. In 2006, defendant moved to vacate the judgment of conviction on the grounds that it was not supported by legally sufficient evidence of depraved indifference; that there was newly discovered evidence; and that the People had failed to disclose exculpatory evidence.

The Appellate Division concluded, in part, that defendant's motion to vacate the judgment on the ground that the trial evidence was insufficient to establish that he had acted with depraved indifference should have been summarily denied, since a court must deny such a motion when the issue raised was previously determined on the merits upon an appeal from the judgment. Defendant, on direct appeal, had contested the sufficiency of the evidence, and the issue was decided against him under the law in effect at the time of the judgment. The Appellate Division stated that the sole exception to mandatory summary denial was if there had been a retroactively effective change in the law controlling such issue since the time of the appellate determination. In addition, the Appellate Division found that although the law regarding depraved indifference murder had changed subsequent to the defendant's direct appeal ( see People v Feingold, 7 NY3d 288), the Court of Appeals unequivocally instructed that the new depraved indifference standard was not to be applied retroactively by way of a CPL article 440 motion.

People v DiGuglielmo, 75 AD3d 206, affirmed.