Nevertheless, the record supports the conclusion that it was objectively reasonable, and not prejudicial, for counsel to forgo a suppression hearing in order to obtain a favorable disposition for his client. The order denying defendant's motion to reargue or renew his 440.10 motion is not appealable (see People v Cooper, 154 A.D.2d 612, 613 [2d Dept 1989]; see also People v Pagan, 19 N.Y.3d 368, 370 [2012]; People v DePalo, 147 A.D.3d 633 [1st Dept 2017]). Even if the motion can be treated as a separate, subsequent CPL 440.10 motion (see Wright, 27 N.Y.3d at 522; People v Session, 34 N.Y.2d 254, 256 [1974]), and deemed appealable on that basis, we find that the motion was properly denied.
Nevertheless, the record supports the conclusion that it was objectively reasonable, and not prejudicial, for counsel to forgo a suppression hearing in order to obtain a favorable disposition for his client. The order denying defendant's motion to reargue or renew his 440.10 motion is not appealable (seePeople v. Cooper, 154 A.D.2d 612, 613, 546 N.Y.S.2d 441 [2d Dept. 1989] ; see alsoPeople v. Pagan, 19 N.Y.3d 368, 370, 948 N.Y.S.2d 217, 971 N.E.2d 347 [2012] ; People v. DePalo, 147 A.D.3d 633, 46 N.Y.S.3d 870 [1st Dept. 2017] ). Even if the motion can be treated as a separate, subsequent CPL 440.10 motion (seeWright, 27 N.Y.3d at 522, 35 N.Y.S.3d 286, 54 N.E.3d 1157 ; People v. Session, 34 N.Y.2d 254, 256, 357 N.Y.S.2d 409, 313 N.E.2d 728 [1974] ), and deemed appealable on that basis, we find that the motion was properly denied.
Nevertheless, the record supports the conclusion that it was objectively reasonable, and not prejudicial, for counsel to forgo a suppression hearing in order to obtain a favorable disposition for his client. The order denying defendant's motion to reargue or renew his 440.10 motion is not appealable (see People v Cooper, 154 A.D.2d 612, 613 [2d Dept 1989]; see also People v Pagan, 19 N.Y.3d 368, 370 [2012]; People v DePalo, 147 A.D.3d 633 [1st Dept 2017]). Even if the motion can be treated as a separate, subsequent CPL 440.10 motion (see Wright, 27 N.Y.3d at 522; People v Session, 34 N.Y.2d 254, 256 [1974]), and deemed appealable on that basis, we find that the motion was properly denied.
The First Department dismissed the appeal on February 27, 2017, stating "[a] ‘defendant [in a criminal case] may only appeal after conviction’ and may not obtain an interlocutory appeal by claiming to invoke the court's civil jurisdiction." People v. DePalo , 147 A.D.3d 633, 634, 46 N.Y.S.3d 870 (1st Dept. 2017). The case was subsequently reassigned to the Hon. Mark Dwyer.
In a nutshell, the Court ruled that no appeal could be taken from an order entered during the course of a criminal case. People v. DePalo , 147 AD3d 633 (1st Dept 2017). After Justice Zweibel moved to a different part, the case was reassigned to this judge.