Opinion
787 KA 18-02204
10-01-2021
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JOSE MEJIA, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, TROUTMAN, BANNISTER, AND DEJOSEPH, JJ.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), entered October 11, 2018. The order denied the motion of defendant to vacate a judgment of conviction pursuant to CPL 440.10.
It is hereby ORDERED that the order so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from an order denying his CPL 440.10 motion to vacate the judgment convicting him following a jury trial of, inter alia, two counts of murder in the second degree (Penal Law § 125.25 [1], [3]) and one count of robbery in the first degree (§ 160.15 [2]). We affirmed the judgment of conviction on direct appeal (People v Mejia, 126 A.D.3d 1364 [4th Dept 2015], lv denied 26 N.Y.3d 1090 [2015], cert denied ___ U.S. ___, 136 S.Ct. 2416 [2016]). Defendant made the motion herein to vacate the judgment of conviction on the ground, inter alia, that defense counsel was ineffective. Contrary to defendant's contention, we conclude that Supreme Court properly denied the relevant part of the motion pursuant to CPL 440.10 (2) (c) because the allegations of ineffectiveness that are in question involve matters of record that could have been raised on direct appeal from the judgment of conviction (see People v Watkins, 79 A.D.3d 1648, 1648 [4th Dept 2010], lv denied 16 N.Y.3d 800 [2011]; People v Smith, 269 A.D.2d 769, 770 [4th Dept 2000], lv denied 95 N.Y.2d 858 [2000]; see also People v McCullough, 144 A.D.3d 1526, 1526-1527 [4th Dept 2016], lv denied 29 N.Y.3d 999 [2017]; see generally People v Maffei, 35 N.Y.3d 264, 269-270 [2020]).