N.Y. Crim. Proc. Law § 440.10

Section 440.10(2)(c) bars a motion to vacate based on matters appearing in the record that the defendant unjustifiably failed to raise on direct appeal.

McNeil v. People of the State of New York · filed 2021-07-15(2)(c)

Petitioner is now precluded from raising those matters on a subsequent motion to vacate. See N.Y. Crim. Proc. Law § 440.10(2)(c)8 (barring review if a claim could have been raised on direct appeal because it involved matters appearing on the record).

Section 440.10(2)(c) bars a motion to vacate based on a record-based claim that could have been raised on direct appeal.

People v. Streeter · filed 2021-05-07(2)(c)

We further reject defendant's contention that the court erred in denying without a hearing his motion with respect to his contention that he was denied due process by the prosecutor's [*2]remarks in summation inasmuch as that issue involves matters of record that could have been raised on direct appeal ( see CPL 440.10 [2] [c]).

Section 440.10(2)(c) requires a court to deny a claim that could have been raised on direct appeal.

Lancaster v. Capra · filed 2021-05-13(2)(c)

And Petitioner cannot raise this claim in a motion to vacate his judgment of conviction pursuant to Criminal Procedure Law §440.10, because, in a 440.10 proceeding, a court is required to deny a claim if the claim could have been raised on direct appeal.

Section 440.10(2)(c) requires denial of a motion to vacate when the record permitted the claim to be raised on direct appeal.

Chrisostome v. Field · filed 2021-05-13(2)(c)

Petitioner cannot raise this claim in a motion to vacate his judgment of conviction pursuant to Criminal Procedure Law § 440.10, because, in a 440.10 proceeding, a court is required to deny a claim if the claim could have been raised on direct appeal.

Section 440.10(2)(c) requires denial of a motion to vacate when the defendant unjustifiably failed to raise a claim on direct appeal despite an adequate record.

Santos v. Shanley · filed 2021-07-22(2)(c)

Additionally, collateral review is unavailable because Petitioner could have raised his Confrontation Clause claim on direct appeal.

Section 440.10(2)(c) requires denial of a motion to vacate based on claims that the record permitted the defendant to raise on direct appeal but that the defendant unjustifiably failed to raise.

Byng v. Annucci · filed 2021-04-21(2)(c)

Because claims 1, 2, and 5 appear to be based on the record, the claims could have been raised on direct appeal but were not; consequently, Byng cannot bring a motion to vacate as to such claims.

Section 440.10(2)(b) and (c) require denial of claims that the record permits the court to review on a pending appeal or that the defendant could have raised on a prior direct appeal.

People v. Spradlin · filed 2021-03-11(2)(b), (2)(c)

The majority of the claims that defendant raises in his appeal from the denial of his CPL 440.10 motion — to wit, defendant's challenge to the permitted in-court identification and the search and seizure of his person and the jacket — are based on facts that were either apparent from the face of the record to permit adequate review upon direct appeal ( see CPL 440.10 [2] [b]; People v Grays , 162 AD3d 1224, 1228 [2018], lv denied 32 NY3d 1111 [2018]) or are not the proper subject of a CPL article 440 motion because his claims could have been raised on his direct appeal, but defendant failed to do so ( see CPL 440.10 [2] [c]; People v Bruno , 97 AD3d 986, 987 [2012], lv denied 20 NY3d 931 [2012]).

A CPL 440.10 motion may be denied when its record-based arguments were already raised on direct appeal.

People v. Parker · filed 2019-06-27

Turning to defendant's CPL article 440 motion to vacate the judgment of conviction, County Court did not err in denying said motion without a hearing as the arguments advanced therein were based upon information in the record and, in fact, were raised on direct appeal ( see People v Lamb , 162 AD3d 1395, 1397 [2018], lv denied 32 NY3d 1112 [2018]; People v Douglas , 162 AD3d 1212, 1217 [2018], lv denied 31 NY3d 1147 [2018]; People v Miller , 159 AD3d 1045, 1046 [2018], lv denied 31 NY3d 1084 [2018]).

Section 440.10(2)(c) bars a claim based on errors apparent from the trial record that could have been raised on direct appeal.

People v. Nelson · filed 2019-04-04(2)(c)

These alleged errors, however, were apparent from the record and, thus, could have been raised as part of the ineffective assistance of counsel claim that defendant already made on his direct appeal ( see CPL 440.10 [2] [c]; People v Leader , 116 AD3d 1239, 1239-1240 [2014], lvs denied 24 NY3d 1045, 1046 [2014]; People v Jones , 101 AD3d 1482, 1483 [2012], lv denied 21 NY3d 1017 [2013]).

Section 440.10(2)(c) does not require denial when the trial transcript lacked sufficient facts to permit adequate review of the claim on direct appeal.

People v. Lee · filed 2019-05-03(2)(c)

We agree with defendant that denial of the motion was not mandated by CPL 440.10 (2) (c) inasmuch as sufficient facts did not appear in the trial transcript to permit adequate review of defendant's Sandoval contention on his direct appeal ( see generally People v Pace , 155 AD3d 1669, 1673 [4th Dept 2017]).

Section 440.10(2)(b) requires denial of a motion to vacate when the judgment is appealable or pending on appeal and the record permits adequate review of the claim on direct appeal.

People v. Dorsey · filed 2019-03-14(2)(b)

Finally, Supreme Court properly denied defendant's CPL 440.10 motion without a hearing. At the time of the motion, the judgment was appealable or pending on appeal, and the record was sufficient to permit adequate review of defendant's claim of innocence, based on the victim's recantation letter, on direct appeal ( see CPL 440.10 [2] [b]; People v Bruno , 97 AD3d 986, 986-987 [2012], lv denied 20 NY3d 931 [2012]; People v Saunders , 301 AD2d 869, 870 [2003], lv denied 100 NY2d 542 [2003]).

Section 440.10(2)(a) requires denial of a motion raising an issue already decided on direct appeal unless a retroactively effective change in controlling law has occurred.

People v. Ward · filed 2019-02-13(2)(a)

The court must deny such a motion when "the ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment, unless since the time of such appellate determination there has been a retroactively effective change in the law controlling such issue" (CPL 440.10[2][a]). ... Therefore, Riley did not effect a change in the law controlling the search at issue here. ... Accordingly, we agree with the County Court's determination to deny the defendant's motion pursuant to CPL 440.10 ( see CPL 440.10[2][a]).

Section 440.10(2)(c) does not bar a motion when the defendant’s failure to raise the issue on direct appeal was justified because the relevant cases had not yet been decided.

People v. Hernandez · filed 2018-12-19(2)(c)

Under the unique circumstances of this case, where the cases here relied upon— Hafeez and Payne —had not yet been decided at the time that the direct appeal was perfected, we find that the failure to challenge the legal sufficiency of the evidence on direct appeal was [*3]justified.

Section 440.10(2)(c) requires denial of a motion to vacate when the record permitted review of a claim on direct appeal and the defendant unjustifiably failed to raise it there.

People v. Comfort · filed 2018-10-05(2)(c)

Inasmuch as the record was sufficient to permit review of that contention and defendant unjustifiably failed to raise it on his direct appeal, the court properly denied that part of the motion ( see CPL 440.10 [2] [c]).

Section 440.10(2)(c) bars a motion to vacate based on facts in the record that were sufficient for review on direct appeal.

People v. Malik · filed 2018-11-07(2)(c)

We agree with the Supreme Court's denial of those branches of the defendant's motion which were to vacate the judgment on the ground that, inter alia, the Supreme Court erred in failing to properly apprise the defendant of the risk of deportation in connection with his plea, as the facts relevant to that inquiry appeared on the record and were sufficient to permit an adequate review of the claim on direct appeal ( see CPL 440.10[2][c]).

Section 440.10(2)(b) supports denying a motion to vacate without a hearing when the claim can be raised on an available direct appeal.

People v. Buchanan · filed 2018-07-12(2)(b)

Therefore, County Court properly denied his motion without a hearing as a direct appeal was available ( see CPL 440.10 [2] [b]; People v Carter , 105 AD3d 1149, 1150 [2013]; compare People v Rapp , 133 AD3d 979, 980-981 [2015]; People v Diallo , 113 AD3d 199, 201 [2013]).

CPL 440.10 does not permit a claim based on a plea court's failure to give an immigration warning when that failure is clear from the record; the claim must be raised on direct appeal.

People v. Brown (Raymond) · filed 2018-05-10

Furthermore, without addressing the merits of the People's argument relating to the City Court's failure to inform defendant of the possible immigration consequences of his plea ( see People v Peque , 22 NY3d 168), we note that that argument is not cognizable on a CPL 440.10 [*3] motion, since the court's failure to inform defendant would be clear on the face of the record and, thus, the issue can be raised only on a direct appeal ( see People v Louree , 8 NY3d 541, 546 [2007]; People v Llibre , 125 AD3d 422 , 423 [2015]).

Section 440.10(2)(c) bars a collateral attack based on a claim apparent from the trial record that the defendant unjustifiably failed to raise on direct appeal.

Hughes v. Sheahan · filed 2018-05-01(2)(c)

The facts that would support this claim were apparent on the record, and "New York does not otherwise permit collateral attacks on a conviction when the defendant unjustifiably failed to raise the issue on direct appeal." Id. at 91 (citing CPL § 440.10(2)(c) ); see also Clark, 510 F.3d at 393.

Section 440.10 (2) (c) requires denial of a motion to vacate when the record permitted direct appellate review and the defendant unjustifiably failed to appeal.

People v. Kerley · filed 2018-05-24(2)(c)

However, "sufficient facts appear on the record" to have permitted review of this issue on direct appeal (CPL 440.10 [2] [c]), and defendant offers no legitimate justification for his failure to appeal from the judgment of conviction.

Section 440.10(2)(b) requires denial of a motion to vacate when its claims can be resolved on direct appeal.

People v. Grays · filed 2018-06-14(2)(b)

Finally, County Court properly denied defendant's CPL 440.10 motion inasmuch as the arguments raised by defendant therein could be — and have been — resolved on direct appeal ( see CPL 440.10 [2] [b]; People v Rebelo , 137 AD3d 1315, 1317 [2016], lv denied 28 NY3d 936 [2016], cert denied ___ US ___, 137 S Ct 385 [2016]; People v Johnson , 24 AD3d 967, 970 [2005], lv denied 6 NY3d 814 [2006]).

Section 440.10(2)(b) requires denial of a motion based on allegations in the record that are reviewable on a pending direct appeal.

People v. Douglas · filed 2018-06-14(2)(b)

Supreme Court did not err in denying defendant's CPL 440.10 motion without a hearing, as the allegations raised therein were based upon information in the record and, thus, were reviewable on direct appeal ( see CPL 440.10 [2] [b]).

Section 440.10(2)(b) precludes a motion to vacate based on claims that can be raised on direct appeal when sufficient facts appear in the record.

People v. Lamb · filed 2018-06-28(2)(b)

Turning to defendant's motion to vacate the judgment of conviction, the bulk of the arguments advanced by defendant were or could have been raised on his direct appeal and, as "sufficient facts appear on the record with respect [there]to," such claims are not properly the subject of a CPL article 440 motion (CPL 440.10 [2] [b]; see People v Dickson-Eason , 143 AD3d 1013, 1015 [2016], lv denied 28 NY3d 1123 [2016]).

Section 440.10(2)(c) forecloses review in a motion to vacate of claims that could have been raised on direct appeal.

People v. Lewis · filed 2016-04-28(2)(c)

Moreover, claims such as these that can be raised on direct appeal are foreclosed for review in a CPL 440.10 motion (see CPL 440.10 [2] [c]; People v Hillriegel, 78 AD3d 1381, 1382 [2010]).

Section 440.10 does not permit a claim based on facts apparent from the record that should have been raised on direct appeal.

People v. Davis · filed 2016-03-21(2)(c)

This argument is not properly raised in a CPL 440.10 motion because it relies upon facts that were clear from the face of the record, and should have been raised on direct appeal.

Section 440.10(2)(a) and (c) precludes a hearing on claims based on record matters that were or could have been raised on direct appeal.

CHELLEY, BANGALY, PEOPLE v · filed 2016-03-25(2)(a), (2)(c)

In denying the motion, Supreme Court properly concluded that most of defendant’s challenges to his attorney’s performance are based on matters in the record that were, or could have been, raised on defendant’s direct appeal. Defendant was therefore not entitled to a hearing on those allegations of ineffective assistance of counsel (see CPL 440.10 [2] [a], [c]; People v Vigliotti, 24 AD3d 1216, 1216-1217).

Section 440.10 does not permit a claim apparent on the face of the record to be raised in a motion to vacate the judgment.

People v. Lovejoy · filed 2016-02-16

Defendant’s claim that the court failed to advise him of the immigration consequences of his plea (see People v Peque, 22 NY3d 168 [2013], cert denied 574 US —, 135 S Ct 90 [2014]), is not properly raised in a CPL article 440.10 motion, because that claim would be “clear from the face of the record” (People v Llibre, 125 AD3d 422, 423 [1st Dept 2015], lv denied 26 NY3d 969 [2015]).

Section 440.10(2)(b) requires denial of a motion to vacate when the record permits adequate review of the claim on a pending direct appeal.

ANNIS, CHRISTOPHER, PEOPLE v · filed 2015-12-23(2)(b)

With respect to defendant’s contentions that he was denied a fair trial by prosecutorial misconduct and that the court erred in excluding photographs of the vehicle, we conclude that the court properly denied the motion without a hearing inasmuch as “sufficient facts appear[ed] on the record with respect to [those contentions] to permit adequate review thereof upon” a direct appeal (CPL 440.10 [2] [b]; see People v Rossborough, 122 AD3d 1244, 1246) and, indeed, defendant’s direct appeal from the judgment was pending.

Section 440.10(2)(c) bars a claim based on the trial record that could have been raised on direct appeal but was not.

People v. Beckingham · filed 2015-12-10(2)(c)

Inasmuch as this claim is based upon facts contained in the record and could have been, but was not, raised on defendant's direct appeal from his judgment of conviction, it is not the proper subject of a CPL 440.10 motion (see CPL 440.10 [2] [c]; People v Bruno, 97 AD3d 986, 986-987 [2012], lv denied 20 NY3d 931 [2012]; People v Stevens, 95 AD3d 1451, 1452 [2012], lv denied 19 NY3d 1029 [2012]).

Section 440.10(2)(c) does not ordinarily bar a motion based on counsel’s out-of-court advice when the claim could not be reviewed on direct appeal.

Fulton v. Graham · filed 2015-09-11(2)(c)

In these circumstances, we can only conclude that the state court’s reliance on § 440.10(2)(c) to bar Fulton’s claim represents an “exorbitant application” of the state rule.

Section 440.10(2)(c) bars a motion to vacate based on record facts that could have been reviewed on direct appeal when the defendant unjustifiably failed to obtain that review.

Jones v. Annucci · filed 2015-08-26(2)(c)

Further, his unexhausted claims are procedurally barred. Because these unexhausted claims are based on the record, he cannot bring a motion to vacate as to these claims.

Section 440.10(2)(a) bars a defendant from challenging in a motion to vacate a finding the appellate court made on direct appeal.

People v. Cruz · filed 2015-09-02(2)(a)

The defendant may not properly challenge that finding in a motion pursuant to CPL 440.10 (see CPL 440.10 [2] [a]).

Section 440.10(2)(b) does not permit denial of a motion on the ground that the issues can be reviewed on direct appeal when the record does not permit adequate review.

BAILEY, WILLARD, PEOPLE v · filed 2015-06-12(2)(b)

Contrary to the People’s contention, the record does not permit adequate review of those issues, and we agree with defendant that the court erred in denying the motion without a hearing on the ground that “sufficient facts appear on the record with respect to the ground[s] or issue[s] raised upon the motion to permit adequate review thereof upon [direct] appeal” (CPL 440.10 [2] [b]).

Section 440.10 requires denial of a motion to vacate when a claim was decided on direct appeal or could have been raised there without justification for the omission.

People v. Lebron · filed 2015-05-13(2)(a), (2)(c)

The claims of ineffective assistance of counsel raised by the defendant in his motion pursuant to CPL 440.10 were either raised on his direct appeal from the judgment and determined on the merits, or could have been raised on his direct appeal from the judgment (see People v Rauf, 111 AD3d 492, 493 [2013]; People v Cochrane, 27 AD3d 659, 660 [2006]). The defendant offered no justification for failing to raise some of his present claims on his direct appeal from the judgment.

Section 440.10 does not provide a proper motion to vacate judgment for claims that are reviewable on direct appeal.

People v. Lang · filed 2015-04-02

Preliminarily, the claims raised by defendant in the context of his CPL article 440 motion – namely, that his plea was coerced and/or otherwise involuntary – are reviewable upon defendant's direct appeal from the judgment of conviction and, hence, are not the proper subject of such a motion (see People v Hillriegel, 78 AD3d 1381, 1382 [2010]; People v Lagas, 49 AD3d 1025, 1026 [2008], lvs denied 10 NY3d 859, 866 [2008]).

Section 440.10(2)(b) requires denial when a claim can be raised on a pending direct appeal, but it does not bar an ineffective-assistance claim based on matters outside the record.

WASHINGTON, EDDIE, PEOPLE v · filed 2015-05-01(2)(b)

Contrary to the People’s contention, defendant is not challenging the ruling on the suppression motion, which could be raised on the pending direct appeal and would thus require denial of the CPL 440.10 motion (see CPL 440.10 [2] [b]). Moreover, he is not contending that the court was required to grant suppression under the doctrine of collateral estoppel. Rather, defendant’s main contention is that “defense counsel’s failure to develop a sufficient factual record at the suppression hearing constitutes ineffective assistance of counsel. Because that contention rests upon matters outside the record, . . . ‘the appropriate vehicle by which to obtain review of [that contention] is through the commencement of a proceeding pursuant to CPL article 440’ ” (People v Simmons, 221 AD2d 994, 994, lv denied 88 NY2d 885).

Section 440.10(2)(c) does not bar a claim that counsel failed to consult or hire an expert when the claim depends on facts outside the trial record and could not properly be raised on direct appeal.

People v. Hernandez · filed 2015-02-18(2)(c)

Consequently, the defendant’s contention that his trial counsel was ineffective in failing to consult or hire an expert witness on the issue of child sexual abuse syndrome, so as to refute the testimony offered by the People at trial, was of the type that properly may be raised in the context of a motion pursuant to CPL 440.10. Accordingly, that branch of the defendant’s motion was not procedurally barred by CPL 440.10 (2) (c).

Section 440.10(2)(c) bars a claim apparent from the record when the defendant has no cognizable justification for failing to appeal.

People v. Llibre · filed 2015-02-03(2)(c)

Defendant has not established any cognizable justification for his failure to appeal (see CPL 440.10 [2] [c]; People v Stewart, 16 NY3d 839, 841 [2011]; People v Ceni, 123 AD3d 506 [1st Dept 2014]), and nothing in People v Grubstein (24 NY3d 500 [2014]), which involves a complete deprivation of counsel, is to the contrary.

CPL 440.10 (2) (c) does not require denial when the trial record lacked facts sufficient for appellate review or the time to appeal had not expired.

People v. Martial · filed 2015-02-04(2)(c)

Here, the County Court erred when it summarily denied the defendant’s motion pursuant to CPL 440.10 (2) (c), as sufficient facts did not appear on the record to have permitted adequate review upon the appeal by the defendant, and, in any event, at the time of the order appealed from, the defendant had not failed to take or perfect an appeal within the prescribed period.

Section 440.10(2)(c) bars claims apparent from the record when the defendant unjustifiably failed to appeal.

People v. Ceni · filed 2014-12-11(2)(c)

Accordingly, there was no appellate review, “owing to the defendant’s unjustifiable failure to take or perfect an appeal” (CPL 440.10 [2] [c]). ... Defendant’s failure to appeal was “unjustifiable” within the meaning of the statute (see People v Stewart, 16 NY3d 839, 841 [2011]), and defendant has presented nothing to the contrary.

Section 440.10(2)(c)'s procedural bar applies only to motions under section 440.10, not motions to set aside a sentence under section 440.20.

POVOSKI, JR., FRANK J., PEOPLE v · filed 2013-11-08(2)(c)

The procedural bar set forth in CPL 440.10 (2) (c) “applies only to motions made pursuant to section 440.10, and it is undisputed that the instant motion was made pursuant to section 440.20” (People v McCants, 15 AD3d 892, 893).

Section 440.10(2)(c) bars a motion claim that could have been raised on direct appeal.

PENNINGTON, JAMES, PEOPLE v · filed 2013-06-14(2)(c)

Defendant’s challenge to the admission of the testimony of the Associate Chief Medical Examiner (hereafter, Medical Examiner) at trial could have been raised on direct appeal, and thus the court properly denied that part of his motion challenging that testimony (see CPL 440.10 [2] [c]).

Section 440.10(2)(b) requires denial of a motion to vacate when the judgment is appealable and the record contains enough facts for adequate review of the claim on appeal.

People v. Anderson · filed 2013-03-07(2)(b)

A motion to vacate a judgment must be denied if the judgment is “appealable . . . and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal” (CPL 440.10 [2] [b]; see People v Bruno, 97 AD3d 986, 986-987 [2012], lv denied 20 NY3d 931 [2012]; People v Hillriegel, 78 AD3d 1381, 1382 [2010]).

Section 440.10(2)(a) requires denial of a motion to vacate when the issue was decided on direct appeal and no retroactive change in controlling law has occurred.

People v. Carter · filed 2013-04-11(2)(a)

Given that these issues have been determined on the merits and there has been no retroactive change in the controlling law, County Court properly denied defendant’s motion as it related to these claims (see People v Strawbridge, 76 AD3d 115, 118-119 [2010], lv denied 15 NY3d 895 [2010]; People v Thompson, 48 AD3d 883, 885 [2008], lv denied 10 NY3d 965 [2008]).

Section 440.10 is the ordinary route for an ineffective-assistance claim when counsel’s reasons are outside the trial record; the claim may be heard on direct appeal when the record makes those reasons clear.

People v. Barnes · filed 2013-05-23

As a preliminary matter, we recognize that a challenge to a conviction based upon ineffective assistance of counsel must ordinarily be made in the context of a motion to vacate the conviction pursuant to CPL 440.10. ... Under such circumstances, where counsel’s thought process needs no further elucidation, it is appropriate to consider the ineffective assistance claim on direct appeal.

Section 440.10(2)(c) bars collateral review of a plea allocution defect apparent on the record when the defendant did not appeal the conviction.

People v. Acevedo · filed 2013-03-28(2)(c)

Since defendant did not appeal from her conviction, and since the defect in the plea allocution is an issue that appears on the record, collateral review of the sufficiency of the allocution is barred by CPL 440.10 (2) (c).

Section 440.10(2)(c) does not bar an ineffective assistance claim to the extent it depends on communications outside the record.

People v. Santos · filed 2013-04-29(2)(c)

Though the general purpose of CPL 440.10 (2) (c) is to prohibit a defendant from using CPL 440.10 as a substitute for direct appeal, such a procedural bar is typically ill suited to ineffective assistance of counsel claims. ... Accordingly, to the extent defendant’s claim incorporates communications not reflected in the record, defendant’s motion is not procedurally barred.

Section 440.10(2)(b) makes issues reviewable on direct appeal improper grounds for a motion to vacate the judgment.

People v. Dozier · filed 2012-04-12(2)(b)

Many of the issues were reviewable on direct appeal and, thus, were not the proper subject of a CPL article 440 motion (see CPL 440.10 [2] [b]).

Section 440.10(2)(c) does not bar an ineffective assistance claim that depends partly on facts outside the trial record, because the claim could not have been adequately reviewed on direct appeal.

People v. Isaacs · filed 2012-04-17(2)(c)

Thus, the defendant’s claim is not procedurally barred, and “the CPL 440.10 proceeding is the appropriate forum for reviewing the claim of ineffectiveness in its entirety” (People v Maxwell, 89 AD3d at 1109; see People v Brown, 45 NY2d 852 [1978]).

Section 440.10(2)(b) requires denial of a motion to vacate when a direct appeal is pending and the record contains sufficient facts to review the claims.

People v. Trombley · filed 2012-01-26(2)(b)

All of these grounds were raised, reviewed and rejected herein on defendant’s direct appeal from the judgment of conviction, and his CPL article 440 motion was properly summarily denied (except on one issue) because the direct appeal of the judgment was pending and “sufficient facts appear on the record” to permit adequate review thereof (CPL 440.10 [2] [b]).

Section 440.10 does not permit a claim apparent on the record that could have been raised on direct appeal; a motion raising such a claim may be denied without a hearing.

People v. Chiacchiarini · filed 2012-01-19

As County Court correctly observed, where, as here, the alleged Catu violation appears on the face of the record and, therefore, could have been raised on a direct appeal, such claim cannot be advanced in the context of a CPL article 440 motion (see People v Stewart, 16 NY3d 839, 840-841 [2011]; People v Louree, 8 NY3d 541, 546 n [2007]; People v Hogue, 62 AD3d 410, 410-411 [2009]; People v Rivera, 51 AD3d 1267, 1269 [2008]; People v Figueroa, 45 AD3d 297, 298 [2007]). Accordingly, defendant’s CPL 440.10 motions were properly denied without a hearing on this basis.

Section 440.10(2)(c) bars a motion to vacate based on claims that could have been raised on direct appeal but were not.

People v. Stevens · filed 2012-05-10(2)(c)

The bulk of defendant’s present claims involve matters that could have been, but were not, raised upon her direct appeal from the judgment of conviction and, as such, are not the proper subject of a CPL 440.10 motion (see CPL 440.10 [2] [c]; People v Pecararo, 83 AD3d 1284, 1286 [2011], lv denied 17 NY3d 820 [2011]; People v Rolle, 72 AD3d 1393, 1397 [2010], lv denied 16 NY3d 745 [2011]; People v Polanco, 52 AD3d 947 [2008], lv denied 11 NY3d 793 [2008]).

Section 440.10(2)(b) does not bar a mixed ineffective assistance claim when some allegations depend on facts outside the trial record.

People v. Maxwell · filed 2011-11-29(2)(b)

Thus, where, as here, a defendant presents a mixed claim of ineffective assistance that depends, in part, upon matters that do not appear on the record, it cannot be said that “sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal” (CPL 440.10 [2] [b]).

Section 440.10(2)(c) does not bar a mixed ineffective-assistance claim that depends in part on facts outside the trial record.

People v. Lou · filed 2012-05-08(2)(c)

Since the defendant’s claim of ineffective assistance, which must be viewed as a whole, depends, in part, upon matter that does not appear on the record, it cannot be said that “sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion” (CPL 440.10 [2] [c]; see People v Maxwell, 89 AD3d at 1109).

Section 440.10(2)(c) does not bar a motion based on counsel’s alleged off-record advice merely because the defendant failed to appeal.

People v. Robert G. · filed 2011-06-21(2)(c)

Accordingly, the defendant’s motion was not procedurally barred by CPL 440.10 (2) (c).

Section 440.10(2)(c) bars a motion to vacate based on matters apparent from the record that are reviewable on direct appeal.

People v. Pecararo · filed 2011-04-21(2)(c)

Inasmuch as this argument stems from facts apparent on the record, it would be reviewable on direct appeal and, therefore, is not properly the subject of a CPL 440.10 motion ... Significantly, in his affidavit, defendant does not explain this comment or link it to any evidence outside the record.

Section 440.10(2)(a) does not require denial of a legal-insufficiency claim when the direct appeal raised only a weight-of-the-evidence claim.

Echevarria-Perez v. Burge · filed 2011-04-26(2)(a)

However, under the circumstances here, I do not believe that the trial court properly applied C.P.L. § 440.10(2)(a) to dismiss a legal-insufficiency claim on the basis that such a claim had already been decided on direct appeal, because Petitioner did not raise a legal-insufficiency claim on direct appeal.

Section 440.10(2)(c) bars a record-based challenge to a plea when the defendant offers no justification for failing to raise it on direct appeal.

People v. Stewart · filed 2011-04-05(2)(c)

In the absence of justification for a defendant’s failure to pursue this issue in a direct appeal (which is absent here), such a claim may not be raised in a CPL 440.10 motion.

Section 440.10(2)(c) requires denial of a motion to vacate when a claim apparent from the trial record could have been raised on direct appeal.

Linnen v. Poole · filed 2011-02-04(2)(c)

Secondly, if Linnen were to raise the claim in connection with a C.P.L. § 440.10 collateral motion to vacate the judgment, the state court would be required to deny the motion because the issue was apparent from the trial record and could have been raised on direct appeal. N.Y. Crim. Proc. Law § 440.10(2)(c).

CPL 440.10 (2) (c) requires denial of a motion to vacate when the trial record contained sufficient facts to permit adequate review of the claim on direct appeal.

People v. Smith · filed 2010-11-12(2)(c)

We conclude that Supreme Court properly denied defendant’s motion and that, indeed, it was required to do so pursuant to CPL 440.10 (2) (c), because sufficient facts appeared in the trial record to enable adequate appellate review of that contention on direct appeal from the judgment (see People v Maldonado, 34 AD3d 497, 498 [2006], lv denied 8 NY3d 847 [2007]; People v Jossiah, 2 AD3d 877 [2003], lv denied 2 NY3d 742 [2004]; People v La Mountain, 288 AD2d 503, 504 [2001], lv denied 97 NY2d 730 [2002], 98 NY2d 731 [2002]).

Section 440.10(2)(c) requires denial of a motion to vacate when the defendant could have raised the claim on direct appeal.

People v. Watkins · filed 2010-12-30(2)(c)

In denying the motion, County Court properly concluded that the contention of defendant that he was denied effective assistance of counsel could have been raised on his direct appeal from the judgment of conviction (see CPL 440.10 [2] [c]; People v Mastowski, 63 AD3d 1589 [2009], lv denied 12 NY3d 927 [2009], reconsideration denied 13 NY3d 837 [2009]; People v Hall, 28 AD3d 678 [2006], lv denied 7 NY3d 867 [2006]).

Section 440.10(2)(c) bars collateral review of a claim that could have been raised on direct appeal.

People v. Kabre · filed 2010-07-22(2)(c)

Collateral review is not available under CPL 440.10 when the issue presented could have been raised on direct appeal (CPL 440.10 [2] [c]).

Section 440.10(2)(a) permits reconsideration of an issue decided on appeal only when a change in controlling law applies retroactively under common-law principles.

People v. Strawbridge · filed 2010-07-22(2)(a)

We find no support for defendant’s contention that the statutory language in CPL 440.10 (2) (a)—which precludes collateral review of points previously determined on appeal except where there has been a “retroactively effective change in the law controlling such issue”—has a meaning independent of and greater than under common-law retroactivity principles.

Section 440.10(2)(c) does not require denial when the attorney who represented the defendant at trial also represented him on direct appeal and failed to raise his own ineffectiveness.

People v. Hoffler · filed 2010-06-24(2)(c)

Under these circumstances, the court should not have denied defendant’s motion pursuant to CPL 440.10 (2) (c) because counsel’s failure to raise his own ineffectiveness on direct appeal was not “unjustifiable” (CPL 440.10 [2] [c]; see People v Harris, 109 AD2d 351, 360 n 3, 364 [1985], lv denied 66 NY2d 919 [1985]; see also People v Reynolds, 309 AD2d 976, 977 [2003]).

Section 440.10(2)(c) bars a motion to vacate based on a claim the defendant failed to raise on direct appeal.

Bumpus v. WARDEN, CLINTON CORRECTIONAL FACILITY · filed 2010-04-06(2)(c)

Since it is unexhausted, and since any attempt now to present this claim in New York state court would be procedurally barred by petitioner's failure to raise it on direct appeal, Bumpus's federal grand jury-related claim is not amenable to federal habeas review on the merits.

Section 440.10 permits denial of a motion to vacate a judgment when the issues raised could be raised on direct appeal.

People v. Rolle · filed 2010-04-29

We also conclude that defendant’s CPL 440.10 motion was properly denied on the ground that it raised issues that could be raised by defendant on direct appeal (see People v Barber, 280 AD2d 691, 692 [2001], lv denied 96 NY2d 825 [2001]).

Section 440.10(2)(c) requires denial of a motion based on a claim apparent from the trial record that could have been raised on direct appeal.

Linnen v. Poole · filed 2010-02-24(2)(c)

Secondly, if Linnen were to raise the claim in connection with a C.P.L. § 440.10 collateral motion to vacate the judgment, the state court would be required to deny the motion because the issue was apparent from the trial record and could have been raised on direct appeal.

Section 440.10(2)(c) requires denial of a motion to vacate when the defendant could have raised the claim on direct appeal.

People v. Payton · filed 2010-04-22(2)(c)

Inasmuch as the argument now advanced could have been raised on direct appeal, CPL 440.10 (2) (c) mandates denial of the motion ... Accordingly, defendant’s motion was properly denied.

Section 440.10(2)(c) requires denial of a motion to vacate when the trial record permitted review of the issue on appeal but the defendant unjustifiably failed to raise it.

People v. Pitts · filed 2009-05-13(2)(c)

Issues concerning legal sufficiency of evidence are always within the four corners of the record and therefore come under subdivision (2) of CPL 440.10, which requires that a court must deny a motion to vacate a judgment.

Section 440.10(2)(c) bars a motion to vacate based on an omission apparent from the record when the defendant could have raised the claim on direct appeal.

People v. Hogue · filed 2009-05-05(2)(c)

Defendant was not entitled to raise, by way of a CPL 440.10 motion, a claim that the lack of a warning that his sentence would include PRS rendered the plea involuntary under Catu, because “the omission at issue is clear from the face of the record” (People v Louree, 8 NY3d 541, 546 [2007]; see also People v Cooks, 67 NY2d 100 [1986]; CPL 440.10 [2] [c]).

Section 440.10(2)(c) does not bar a motion challenging postrelease supervision when it was not imposed at sentencing and the defendant learned of it only after his direct appeal.

People v. Coleman · filed 2009-04-24(2)(c)

Inasmuch as the court did not impose a period of postrelease supervision at the time of sentencing and defendant was unaware of its imposition until after his direct appeal was decided, we reject the People’s contention that the motion is barred by CPL 440.10 (2) (c) (see Powless, 46 AD3d 1350 [2007]).

Section 440.10(2)(c) does not excuse a failure to raise a record-based claim on direct appeal merely because the precedent supporting it was decided later.

People v. Stewart · filed 2009-11-19(2)(c)

Defendant also argues that this rule should not apply to him because his failure to take a direct appeal was not “unjustifiable” within the meaning of CPL 440.10 (2) (c), in that his time to take an appeal expired before Catu was decided, so that an appeal would allegedly have been futile. ... Moreover, it would not have been “futile” to raise the issue of lack of advice concerning postrelease supervision on appeal; defendant had the same opportunity as the defendant in Catu to do so.

Section 440.10(2)(c) bars claims that could have been raised on direct appeal but were not.

People v. Kaminski · filed 2009-04-09(2)(c)

Given that each of these claims could have been, but were not, raised on defendant’s direct appeal from the judgment of conviction, County Court properly denied any application made by defendant based upon them (see CPL 440.10 [2] [c]; People v Tucker, 40 AD3d 1213, 1217 [2007], lv denied 9 NY3d 882 [2007]).

Section 440.10(2)(c) requires denial of a motion to vacate when the defendant unjustifiably failed to raise a claim on direct appeal despite a sufficient factual record.

Burch v. Millas · filed 2009-08-14(2)(c)

The claim, although technically unexhausted, should be “deemed” exhausted because Burch has no further avenues in state court by which he can seek redress; he has already utilized the one direct appeal to which he is entitled, and if raised on collateral review in a C.P.L. § 440.10 motion, the trial court would be required to deny it since it unjustifiably was not raised on direct appeal despite a sufficient factual record.

Section 440.10(2)(b) bars consideration of claims that can be reviewed on a pending direct appeal.

People v. Comfort · filed 2009-03-20(2)(b)

That contention with respect to appeal No. 2, as well as his remaining contentions in appeal No. 2, are not properly before us (see CPL 440.10 [2] [b]).

Section 440.10(2)(a) bars a motion to vacate insofar as it renews a challenge to the admissibility of evidence previously raised on direct appeal.

People v. Holman · filed 2009-06-23(2)(a)

The County Court properly denied the defendant’s motion insofar as it challenged the admissibility of DNA evidence admitted at trial, since he previously challenged the admissibility of the DNA evidence on his direct appeal to this Court (see People v Holman, 248 AD2d 637 [1998]; CPL 440.10 [2] [a]).

Section 440.10(2)(c) bars using a motion to vacate for a second appeal on an issue apparent from the record, including one seeking interest of justice review.

People v. Pedraza · filed 2008-11-25(2)(c)

A CPL 440.10 motion may not be used as a device to obtain a second appeal on an issue that appears on the face of the record (CPL 440.10 [2] [c]; People v Cooks, 67 NY2d 100 [1986]), and we see no reason to distinguish between issues of law and issues that seek to invoke this Court’s interest of justice jurisdiction.

Section 440.10(2)(c) bars a motion to vacate based on a claim the defendant unjustifiably failed to raise on direct appeal.

Parker v. Ercole · filed 2008-10-15(2)(c)

Any attempt to raise the claim in a second section 440 motion would be met by this procedural bar.

Section 440.10(2)(c) bars a claim based on an omission apparent from the record when the defendant could have raised it on direct appeal.

People v. Hogue · filed 2008-12-23(2)(c)

Defendant was not entitled to raise, by way of a CPL 440.10 motion, a claim that the lack of a warning that his sentence would include PRS rendered the plea involuntary under Catu, because “the omission at issue is clear from the face of the record” (People v Louree, 8 NY3d 541, 546 [2007]; see also People v Cooks, 67 NY2d 100 [1986]; CPL 440.10 [2] [c]).

Section 440.10(2)(c) requires denial of a motion to vacate when the record permitted adequate review on direct appeal and the defendant unjustifiably failed to raise the claim then.

People v. Mobley · filed 2009-02-24(2)(c)

The County Court properly denied, without a hearing, that branch of the defendant’s motion pursuant to CPL 440.10 which was to vacate the judgment on the ground that the defendant was denied the effective assistance of counsel based on trial counsel’s failure to ensure that all portions of the voir dire were recorded. Pursuant to CPL 440.10 (2) (c), a motion to vacate a judgment must be denied when, although sufficient facts appear on the record to have permitted adequate appellate review, the defendant unjustifiably fails to raise the issue on his or her direct appeal.

Section 440.10 bars a motion to vacate based on a claim the defendant could have raised on direct appeal but unjustifiably failed to raise.

Corchado v. Rabideau · filed 2008-09-19

Here, it is clear that Corchado is now barred from raising his ... claim in a collateral motion to vacate the judgment in state court because it could have been raised on direct appeal, but was not.

Section 440.10(2)(a) does not bar a claim that was neither raised nor decided on the merits on direct appeal.

People v. Lee · filed 2009-02-06(2)(a)

Supreme Court erred in denying the motion pursuant to CPL 440.10 (2) (a) as having been “previously determined on the merits,” inasmuch as that contention was not raised, much less decided on the merits, upon defendant’s direct appeal from the judgment of conviction (People v Lee, 6 AD3d 1235 [2004], Iv denied 3 NY3d 740 [2004]).

Section 440.10(2)(c) requires denial of a motion to vacate when the record contained sufficient facts to permit adequate review of the claim on direct appeal.

People v. Brown · filed 2009-02-06(2)(c)

Where, as here, “sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review” of the defendant’s contentions, the court must deny a motion to vacate the judgment (CPL 440.10 [2] [c]; see People v Cuadrado, 9 NY3d 362, 364-365 [2007]).

Section 440.10(2)(b) does not bar a claim when the record lacks sufficient facts for adequate review on direct appeal.

People v. Majors · filed 2009-02-24(2)(b)

Contrary to the People’s contention, the defendant’s claim is not procedurally barred on the ground that sufficient facts appeared on the record to permit adequate review of the claim on direct appeal (see CPL 440.10 [2] [b]).

Section 440.10(2)(c) bars a motion to vacate based on a claim reviewable on direct appeal when the defendant unjustifiably failed to appeal.

People v. Lange · filed 2008-08-13(2)(c)

Since no appellate review or determination occurred due to defendant’s unjustifiable failure to take an appeal during the prescribed period, defendant’s motion to vacate the judgment of conviction on the ground of lack of jurisdiction was properly denied (see CPL 440.10 [2] [c]; People v Cuadrado, 37 AD3d 218, 221-222 [2007]).

A section 440.10 motion is unnecessary to preserve a plea-voluntariness error apparent on the face of the record.

People v. Gordon · filed 2008-07-10(2)(b), (c)

Additionally, defendant was not required to make a postjudgment motion to preserve his argument, as a CPL article 440 motion is not necessary or appropriate to preserve an error or omission that implicates the voluntariness of the plea and is clear from the face of the record (see CPL 440.10 [2] [b], [c]; People v Louree, 8 NY3d 541, 546 [2007]; People v Lewis, 48 AD3d 880, 880-881 [2008]).

Section 440.10(2)(c) bars claims that could have been raised on direct appeal when the defendant unjustifiably failed to appeal.

People v. Williams · filed 2008-04-25(2)(c)

Defendant’s remaining contentions could have been raised on direct appeal, and defendant unjustifiably failed to take an appeal (see CPL 440.10 [2] [c]; People v Vigliotti, 24 AD3d 1216 [2005]).

Section 440.10(2)(c) bars a motion to vacate based on claims reviewable on direct appeal when the defendant gives no justification for failing to raise them there.

People v. Chiu Mei Lan Kwok · filed 2008-05-13(2)(c)

Consequently, absent a showing that the defendant’s failure to take an appeal and raise these claims was justifiable, the defendant is barred from raising them on a motion to vacate the judgment (see CPL 440.10 [2] [c]).

Section 440.10(2)(c) bars a motion to vacate based on claims that could have been raised on direct appeal.

People v. Polanco · filed 2008-06-12(2)(c)

Most of the allegations of ineffective assistance of counsel pertain to claimed errors that could have been raised in the context of the direct appeal and are therefore not the proper subject of a CPL 440.10 motion (see CPL 440.10 [2] [c]; People v Nicholson, 50 AD3d 1397, 1399 [2008]).

Section 440.10(2)(b) requires claims based on facts in the record to be raised on direct appeal.

People v. Griffin · filed 2008-02-21(2)(b)

Defendant’s remaining arguments raised on the CPL 440.10 motion rest on facts appearing in the record and, thus, should have been raised on direct appeal (see CPL 440.10 [2] [b]; People v Mullings, 23 AD3d 756, 759 [2005], lv denied 6 NY3d 756 [2005]).

Section 440.10(2)(a) bars vacatur on a plea allocution claim that could have been raised on direct appeal when there has been no retroactively effective change in controlling law.

People v. Watson · filed 2008-03-04(2)(a)

The defendant’s motion to vacate the judgment was correctly denied because the contention that his plea allocution was insufficient could have been raised on his direct appeal and there has been no retroactively effective change in the law controlling that issue (see CPL 440.10 [2] [a]; Policano v Herbert, 7 NY3d 588, 603 [2006]).

Section 440.10(2)(b) permits denial of a motion without a hearing when the claim can be resolved on the record and reviewed on direct appeal.

People v. Lagas · filed 2008-03-20(2)(b)

Here, as defendant’s claim that his guilty plea was not knowingly, voluntarily and intelligently entered can be determined on the record and was reviewable on direct appeal, County Court properly denied the motion without a hearing (see CPL 440.10 [2] [b]; People v Lahon, 17 AD3d 778, 780 [2005], lv denied 5 NY3d 790 [2005]; People v Beverly, 5 AD3d 862, 865 [2004], lv denied 2 NY3d 796 [2004]).

Section 440.10(2)(c) limits a motion to vacate when the claim could have been raised on direct appeal.

People v. Pacheco · filed 2008-04-22(2)(c)

The defendant’s claim regarding ineffective assistance of trial counsel could have been raised on direct appeal from the judgment of conviction (see CPL 440.10 [2] [a], [c]).

A claim that could have been raised on direct appeal is not a proper subject for a Section 440.10 motion.

People v. Nicholson · filed 2008-04-24(2)(c)

However, inasmuch as this argument could have been raised on direct appeal, it is not the proper subject of a CPL 440.10 motion (see CPL 440.10 [2] [c]; People v Hickey, 277 AD2d 511, 511 [2000], lv denied 95 NY2d 964 [2000]).

Section 440.10(2)(c) bars collateral review of record-based claims that could have been raised on direct appeal.

Canteen v. Smith · filed 2008-05-14(2)(c)

The three claims are record-based and therefore cannot be raised on collateral review. See CPL § 440.10(2)(c).

Section 440.10(2)(a) requires dismissal of a motion to vacate based on claims already raised on direct appeal.

Campbell v. Poole · filed 2008-05-30(2)(a)

... and if he were to raise these claims in a C.P.L. § 440.10 motion, the motion court would be obligated to dismiss them because they were raised on direct appeal.

Section 440.10(2)(a) and (c) bar a collateral attack on claims raised or available on direct appeal.

Davenport v. Bradt · filed 2008-05-30(2)(a), (2)(c)

He is also foreclosed from bringing these claims in the state courts as a collateral attack on his conviction because the claims either were raised or could have been raised on his direct appeal.

Section 440.10 (2) (a) requires denial of a motion to vacate when the same ground or issue was previously decided on the merits on appeal.

People v. Swinton · filed 2008-02-07(2)(a)

Since Swinton has previously appealed the judgment of conviction on the same grounds and issues as are raised in the current motion, the motion “must be” denied pursuant to CPL 440.10 (2) (a).

Section 440.10(2)(a) requires denial of a motion raising an issue already decided on the merits on appeal unless a retroactively effective change in controlling law has occurred.

People v. Thompson · filed 2008-02-21(2)(a)

Significantly, a motion to vacate a judgment must be denied if the issue raised on the motion was previously determined on the merits upon an appeal from the judgment “unless since the time of such appellate determination there has been a retroactively effective change in the law controlling' such issue” (CPL 440.10 [2] [a]).

Section 440.10(2)(a) requires denial of a motion to vacate when the issue was decided on direct appeal, unless controlling law has since changed retroactively.

People v. Baptiste · filed 2008-03-27(2)(a)

We note that a motion to vacate a judgment must be denied if the “issue raised upon the motion was previously determined on the merits upon an appeal from the judgment, unless since the time of such appellate determination there has been a retroactively effective change in the law controlling such issue” (CPL 440.10 [2] [a]). Thus, in light of our prior determination regarding legal sufficiency on defendant’s direct appeal, this CPL article 440 motion must be denied unless there has been a retroactive change in the controlling law since the time of that determination.

Section 440.10(2) makes due process claims about a plea allocution that appear on the face of the record ineligible for review on a motion to vacate.

People v. De La Cruz · filed 2008-02-01(2)

The defendant’s due process claims regarding his plea allocution all appear on the face of the record and, as such, are not cognizable under CPL 440.10 (see CPL 440.10 [2]).

A state court’s application of § 440.10(2)(c) can bar federal habeas review of the claim as an adequate state procedural ground.

Clark v. Perez · filed 2008-01-03(2)(c)

We conclude that the district court erred in holding that the state court’s application of section 440.10(2)(c) did not constitute an adequate state procedural bar to Clark’s federal habeas petition.

Section 440.10(2)(b) excludes claims from a motion to vacate when they could be raised on direct appeal.

People v. Terry · filed 2007-10-25(2)(b)

Defendant’s allegations of ineffective assistance, based upon counsel’s failure to move for a mistrial and permitting codefendant’s counsel to make certain arguments, were not properly part of a CPL 440.10 motion as they could have been raised on his direct appeal (see CPL 440.10 [2] [b]).

CPL 440.10 permits a collateral attack without a direct appeal when a defendant had no counsel during the plea and appeal period and challenges a purported waiver of counsel.

People v. Maraj · filed 2007-10-18

While it is settled that CPL 440.10 should not be “employed as a substitute for direct appeal” (People v Cooks, 67 NY2d 100, 103 [1986]), where, as here, the issue involves a defendant who received no representation by counsel (including when entering the plea and thereafter during the time to take an appeal) and he is challenging his purported waiver of that constitutional right, a collateral attack on the judgment of conviction may be considered (see People v Byroads, 24 AD2d 732, 733 [1965]; see also People v Silverman, 3 NY2d 200, 202 [1957]; cf. CPL 440.10 [3] [a]).

Section 440.10(2)(c) does not allow a motion to vacate a judgment to substitute for a direct appeal.

People v. Brinkhuis · filed 2007-10-02(2)(c)

The defendant failed to file a notice of appeal from the judgment rendered May 3, 2000, and a motion to vacate the judgment pursuant to CPL 440.10 cannot be used as a substitute for a direct appeal (see CPL 440.10 [2] [c]; People v Cooks, 67 NY2d 100 [1986]).

Section 440.10(2)(c) bars a motion based on facts in the trial record when the defendant failed to raise the issue on appeal.

People v. Moore · filed 2007-08-02(2)(c)

Since defendant failed to raise these arguments on appeal, defendant’s motion is mandatorily barred under CPL 440.10 (2) (c).

A denial under § 440.10(2)(c) for failure to raise a claim on direct appeal is a state procedural ground barring federal habeas review.

Fink v. Bennett · filed 2007-09-26(2)(c)

The denial of a claim under CPL § 440.10(2)(c) is an adequate and independent state procedural ground barring federal habeas review of such a claim.

Section 440.10(2)(c) requires denial of a motion to vacate when a defendant unjustifiably failed to raise a record-based claim on a perfected direct appeal, even if the claim alleges a jurisdictional defect.

People v. Cuadrado · filed 2007-12-18(2)(c)

CPL 440.10 (1) lists, among the grounds it permits a defendant to raise, a contention that “[t]he court did not have jurisdiction of the action or of the person of the defendant” (CPL 440.10 [1] [a]). A motion on this ground, as on all the other grounds listed in the statute, must be denied when the circumstances described in CPL 440.10 (2) (c) exist.

Section 440.10(2)(c) does not bar a motion when the defendant was unaware of the basis for the claim until after the direct appeal was decided.

People v. Powless · filed 2007-12-21(2)(c)

Contrary to the People’s contention, defendant’s motion is not barred by CPL 440.10 (2) (c) inasmuch as the court did not explicitly impose postrelease supervision at the time of sentencing, and defendant did not become aware of its imposition until after his direct appeal from the judgment of conviction was decided.

Section 440.10(2)(c) bars a motion to vacate based on a claim supported by the trial record that the defendant unjustifiably failed to raise on direct appeal.

Zimmerman v. Burge · filed 2007-06-25(2)(c)

Having failed to raise this claim on direct appeal, petitioner cannot bring it in a 440 motion to vacate judgment.

A CPL 440.10 motion is not the exclusive way to raise an ineffective assistance of counsel claim; the claim may also be raised on direct appeal.

People v. Acevedo · filed 2007-08-16

While the People assert that such claim is unreviewable except where raised by a CPL 440.10 motion, it is well-settled that an ineffective assistance of counsel claim may be raised also on direct appeal.

Section 440.10 does not permit a motion to vacate a plea based on a failure to advise of postrelease supervision when the omission is clear from the record.

People v. Louree · filed 2007-06-05

In so deciding, we cannot shut our eyes to the actual or practical unavailability of either a motion to withdraw the plea under CPL 220.60 (3), or a motion to vacate the judgment of conviction under CPL 440.10 in these cases. ... Finally, the omission at issue is clear from the face of the record and therefore not properly raised in a CPL article 440 motion.

Section 440.10(2)(c) requires denial when the trial record allowed appellate review of a claim the defendant unjustifiably failed to raise on a perfected appeal.

People v. Wilkins · filed 2007-03-22(2)(c)

The court concludes that the defendant in this case could have pursued the issues now presented, on appeal. ... There are no additional facts that needed to appear on the record for appellate review of this issue to occur. His appellate counsel could have argued ineffective assistance of trial counsel. ... Thus, the motion should be denied out of hand.

Section 440.10(2)(c) requires denial of a motion raising a jurisdictional defect reviewable on the trial record when the defendant unjustifiably failed to raise it on direct appeal.

People v. Cuadrado · filed 2007-02-13(2)(c)

Supreme Court erroneously concluded that the bar of CPL 440.10 (2) (c) is not applicable to the jurisdictional defect posited by defendant. In the first place, nothing in the language of subdivision (2) even suggests that its unequivocal command to reviewing courts is not applicable when the ground or issue raised on the motion is a jurisdictional defect.

Section 440.10(2)(a) requires denial of a motion to vacate a judgment when an appeal already decided the issue on the merits, unless a retroactively effective change in controlling law has occurred.

People v. Stewart · filed 2007-01-18(2)(a)

A motion to vacate a judgment or set aside a sentence must be denied if the issue raised on the motion was previously determined on the merits upon an appeal from the judgment or sentence, “unless since the time of such appellate determination there has been a retroactively effective change in the law controlling such issue” (CPL 440.10 [2] [a]; 440.20 [2]).

Section 440.10(2)(a) bars a motion to vacate based on a claim already decided on appeal, and that bar can preclude federal habeas review.

Nunez v. Conway · filed 2007-02-06(2)(a)

As to the first guidepost, courts in this Circuit have held that § 440.10(2) is an adequate and independent procedural ground that precludes federal review. ... The trial court that dismissed Petitioner’s § 440.10 claim thus relied on an adequate and independent procedural ground.

Section 440.10(2) requires denial of a motion claim that could have been raised on direct appeal.

People v. Smith · filed 2007-01-09(2)

... could have been raised on direct appeal from the judgment and, accordingly, the County Court was required to deny that branch of the motion (see CPL 440.10 [2]; ...).

Section 440.10(2)(c) bars a motion to vacate based on claims that were or should have been raised on direct appeal.

People v. Tucker · filed 2007-05-10(2)(c)

As a final matter, the issues that defendant seeks to raise concerning alleged prosecutorial misconduct should have been or were raised in connection with defendant’s direct appeal from the judgment of conviction, and are not properly raised on the present motion to vacate his judgment of conviction (see CPL 440.10 [2] [c]).

CPL 440.10 (2) (c) requires denial of a motion to vacate when the record allowed adequate review of a claim on direct appeal and the defendant unjustifiably failed to raise it.

People v. Maldonado · filed 2006-11-08(2)(c)

Pursuant to CPL 440.10 (2) (c), a motion to vacate a judgment of conviction must be denied when, although sufficient facts appear on the record to have permitted adequate review, the defendant unjustifiably failed to raise the issue on his direct appeal.

Section 440.10(2)(c) requires denial of a motion to vacate when the defendant unjustifiably failed to raise a claim on direct appeal despite a sufficient record.

McCormick v. Hunt · filed 2006-11-20(2)(c)

This is because Section 440.10(2)(c) of New York’s Criminal Procedure Law mandates that the state court deny any § 440.10 motion where the defendant unjustifiably failed to argue such constitutional violation on direct appeal despite a sufficient record.

Section 440.10(2)(a) and (c) bar a motion to vacate based on claims decided on direct appeal or unjustifiably omitted from direct appeal despite a sufficient record.

Cruz v. Berbary · filed 2006-10-16(2)(a), (2)(c)

Second, a review of New York case law demonstrates that compliance was required, as New York State courts have held repeatedly that claims raised and determined on the merits on direct appeal, as well as claims that could have been raised on direct appeal but unjustifiably were not, may not subsequently be raised in a collateral proceeding under C.P.L. § 440.10. ... Thus, the Court concludes that the C.P.L. § 440.10(2)(a) and 440.10(2)(c) constituted adequate and independent state grounds.

Section 440.10(2)(c) bars a claim apparent from the trial record when the defendant unjustifiably failed to raise it on direct appeal.

Powers v. Lord · filed 2006-11-02(2)(c)

Here, the Court agrees with respondent that C.P.L. § 440.10(2)(c) was an “adequate” state ground for dismissing the claim. The alleged error that is the basis for Powers’ ineffectiveness claim— trial counsel’s failure to request a particular jury instruction — obviously is contained within the trial record.

Section 440.10(2)(c) requires denial of a motion to vacate when the defendant unjustifiably failed to raise a claim on direct appeal despite a sufficient record.

Alston v. Donnelly · filed 2006-11-21(2)(c)

As discussed above, Section 440.10(2)(c) of New York’s Criminal Procedure Law mandates that the state court deny any 440.10 motion where the defendant unjustifiably failed to argue such constitutional violation on direct appeal despite a sufficient record.

Section 440.10(2)(c) did not procedurally bar the defendant’s claim based on Florida v J.L.

People v. Breazil · filed 2006-07-05(2)(c)

However, contrary to the People’s contention, the defendant’s claim is not procedurally barred pursuant to CPL 440.10 (2) (c).

Section 440.10(2)(c) did not procedurally bar the defendant’s claim that a Supreme Court decision issued before his conviction became final applied to his motion to vacate.

People v. Breazil · filed 2006-01-24(2)(c)

Further, contrary to the People’s contention, the defendant’s claim is not proeedurally barred pursuant to CPL 440.10 (2) (c).

Section 440.10 permits denial of claims that could have been raised on direct appeal or in an earlier motion to vacate.

People v. Vigliotti · filed 2005-12-22(2)(c), (3)(c)

Defendant’s remaining contentions are unavailing inasmuch as they relate to matters that could have been raised on direct appeal or in the prior CPL 440.10 motion (see CPL 440.10 [2] [c]; [3] [c]; 440.30 [2]; ... 88 NY2d 1020 [1996]).

Section 440.10(2) permits denial of a motion to vacate when the issues raised can be resolved on direct appeal.

People v. Johnson · filed 2005-12-15(2)

Lastly, defendant’s motion pursuant to CPL 440.10 was properly denied since the issues raised can be—and have been— resolved on direct appeal (see CPL 440.10 [2]; People v Saunders, 301 AD2d 869, 870-871 [2003], lv denied 100 NY2d 542 [2003]).

Section 440.10(2)(b) precludes a motion to vacate based on errors appearing in the record when a direct appeal is pending.

People v. Mullings · filed 2005-11-10(2)(b)

Lastly, we agree with defendant’s appellate counsel that there are no nonfrivolous appellate issues with respect to the denial of defendant’s motion pursuant to CPL 440.10. Each claim of error rests on facts appearing in the record (see CPL 440.10 [2] [b]; People v Lahon, 17 AD3d 778, 780 [2005], lv denied 5 NY3d 790 [2005]).

Section 440.10(2)(c) bars a motion to vacate based on an issue apparent from the trial record that the defendant unjustifiably failed to raise on direct appeal.

People v. Chapman · filed 2005-09-19(2)(c)

As noted above and recounted in the People’s response, the defendant appealed his case to the Appellate Division; thus, the defendant’s claim that this court failed to instruct the jury on the law of justification is procedurally barred (CPL 440.10 [2]) and in any event completely erroneous. ... The defendant was clearly in a position to present any related legal argument in his appeal and, thus, the court cannot now entertain it in this motion.

Section 440.10(2)(c) requires denial of a motion to vacate when the record permitted appellate review but the defendant unjustifiably failed to take or perfect a timely appeal.

People v. Pignataro · filed 2005-07-01(2)(c)

The court properly denied the motion to vacate the judgment on the ground that, “ [although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, ... adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant’s unjustifiable failure to take or perfect an appeal during the prescribed period”

Section 440.10(2)(c) bars a motion to vacate a plea when the record contained sufficient facts to raise the claim on direct appeal and the defendant failed to do so.

People v. Boyer · filed 2005-06-16(2)(c)

Initially, we note that Rensselaer County Court properly granted defendant’s motion to vacate the 1994 sentence because it was illegally imposed and likewise properly denied defendant’s motion to vacate his plea inasmuch as sufficient facts existed on the record of the proceedings underlying that judgment to have permitted defendant to raise the issue now advanced on direct appeal, which he failed to do (see CPL 440.10 [2] [c]; 237 AD2d 743 [1997], supra).

Section 440.10(2)(b) requires denial without a hearing when an appeal is pending and the record permits adequate review of the issues raised in the motion.

People v. DeBiaso · filed 2005-05-17(2)(b)

Paragraph (b) of CPL 440.10 (2) indicates one such circumstance that so mandates a denial without a hearing, which is “when: ...(b) The judgment is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal.” Defendant’s case here is currently pending appeal upon a notice filed May 26, 2004. All issues raised in the motion should be adequately preserved in the record and available for such normal appellate review as may remain. For this reason, this article 440 motion must be denied and no hearing is necessary in this matter.

Section 440.10(2)(a) bars a motion to vacate based on claims raised and rejected on direct appeal.

People v. Sayles · filed 2005-04-28(2)(a)

Inasmuch as these claims were raised and rejected on defendant’s direct appeal (292 AD2d at 643), they may not now form the basis for a CPL 440.10 motion (see CPL 440.10 [2] [a]; People v Rossney, 186 AD2d 926, 926 [1992], lv denied 81 NY2d 794 [1993]).

Section 440.10 does not permit a motion based on facts in the record and legal issues that could have been raised before the final judgment of conviction.

People v. Keebler · filed 2005-02-10

“[b]ecause defendant’s claim does not involve factual matters beyond the scope of the record or legal issues which could not have been asserted before the final judgment of conviction, it was not the proper subject of a CPL 440.10 motion”

Section 440.10(2)(c) bars a claim that could have been raised on direct appeal.

People v. LaDuca · filed 2004-12-30(2)(c)

We also conclude that the court properly denied that part of the motion with respect to purported Brady/Rosario material because the issue raised therein could have been raised on direct appeal {see CPL 440.10 [2] [c]).

Section 440.10 motions are improper for ineffective-assistance allegations based on the trial record; those allegations belong on direct appeal.

People v. Castaneda · filed 1993-01-25

We also note that in his motion to vacate the judgment, the defendant improperly made, and the Supreme Court improperly considered, allegations of ineffective assistance of counsel based on the record.

Section 440.10(2)(c) bars claims from a motion to vacate when the record contained enough facts to permit review on direct appeal.

People v. Levine · filed 1992-12-28(2)(c)

The defendant’s remaining contentions could have been raised on the direct appeal, as sufficient facts appeared on the record of the proceedings underlying the judgment to have permitted review thereof. Accordingly, the Supreme Court correctly concluded that those claims could not be raised on a motion pursuant to CPL 440.10 (see, CPL 440.10 [2] [c]).

Section 440.10(2)(c) requires rejection of claims based on the trial record that the defendant failed to raise on direct appeal.

People v. Gates · filed 1993-01-07(2)(c)

More importantly, issues based upon this evidence were not raised by defendant on his direct appeal and were properly rejected by County Court (see, CPL 440.10 [2] [c]; People v Miller, 161 AD2d 956).

Section 440.10(2)(c) bars a claim apparent from the record that could have been raised on direct appeal.

People v. Pachay · filed 1992-07-13(2)(c)

However, since any possible conflict of interest was apparent in the record, this issue could have been raised upon the defendant’s direct appeal from the judgment of conviction (see, CPL 440.10 [2] [c]; People v Skinner, 154 AD2d 216). Therefore, the Supreme Court’s denial of the defendant’s motion predicated upon this ground was proper.

CPL 440.10(2)(b) permits a hearing on a claim raised during a pending appeal when the record lacks sufficient facts for appellate review.

People v. Williams · filed 1992-05-19(2)(b)

The court denied the motion on the ground that defendant could raise the issue on appeal, apparently pursuant to CPL 440.10 (2) (b). To the contrary, there are insufficient facts in the record to permit review of defendant’s claim of ineffective assistance of trial counsel. Accordingly, the matter is remanded for a hearing and disposition on the claim, pending which the appeal is held in abeyance.

Section 440.10(2)(b) permits denial of a motion to vacate when the record contains sufficient facts for adequate appellate review.

People v. Black · filed 1992-02-24(2)(b)

With respect to the defendant’s motion pursuant to CPL 440.10 (1), we agree with the County Court that sufficient facts appear in the record to permit adequate review (see, CPL 440.10 [2] [b]).

Section 440.10(2)(b) requires a claim supported by hearing minutes that are part of the trial record to be raised on direct appeal.

People v. Williams · filed 1992-03-23(2)(b)

Since the minutes of that hearing are part of the trial record, which are reviewable upon direct appeal, the defendant’s Batson claim should be raised on the direct appeal from his judgment of conviction (CPL 440.10 [2] [b]).

Section 440.10(2)(c) requires denial of a motion to vacate when the record permitted adequate review on direct appeal but the defendant unjustifiably failed to raise the ground.

People v. Vigilante · filed 1992-01-17(2)(c)

Firstly, it is to be noted that defendant’s claim that Rosenberg’s excited utterance should not have been admitted into evidence is procedurally barred.

Section 440.10(2)(b) bars a motion to vacate based on the sufficiency of a plea allocution when that issue is fully reviewable on direct appeal.

People v. Maynor · filed 1991-11-12(2)(b)

Further, the defendant’s motion pursuant to CPL 440.10 was properly denied since the sufficiency of the plea allocution was fully reviewable upon the appeal of the underlying judgment (see, CPL 440.10 [2] [b]; People v Cooks, 67 NY2d 100, 103; People v Hill, 161 AD2d 893, 894; People v Benyi, 152 AD2d 864, 865).

Section 440.10 can procedurally bar a postconviction claim of prosecutorial misconduct that was not raised on direct appeal.

Lloyd v. Walker · filed 1991-08-29

This claim would also be procedurally barred by CPL § 440.10, and may no longer be heard on a direct appeal.

Section 440.10(2)(b) requires denial of a motion brought while an appeal is pending if its claims could have been raised on appeal.

People v. Maisonet · filed 1991-04-11(2)(b)

Where such a motion is brought while an appeal is pending and the claims raised in the motion could have been raised in the appeal, the motion should be denied.

Section 440.10(2)(b) requires denial of a motion to vacate when sufficient facts in the record permit appellate review of the claim.

People v. Brown · filed 1990-05-29(2)(b)

As for the court’s summary denial of defendant’s postjudgment motion (CPL 440.10), sufficient facts appear in the record for this court to determine defendant’s claim regarding the People’s alleged failure to turn over exculpatory evidence. Thus, the trial court properly denied the defendant’s motion without a hearing.

Section 440.10(2)(b) requires denial of a motion to vacate without a hearing when the trial record contains sufficient facts to permit the issue to be raised on direct appeal.

People v. Canady · filed 1990-06-13(2)(b)

Since there are sufficient facts on the record of trial, concerning the unobjected-to reception of the serological evidence, to permit the issue to be raised on direct appeal, this motion must be denied, without a hearing.

Section 440.10(2)(c) permits rejection of a claim that the defendant could have raised on direct appeal but did not.

People v. Miller · filed 1990-05-24(2)(c)

This contention could have been raised on defendant’s direct appeal and his failure to do so warranted rejection of this claim (see, CPL 440.10 [2] [c]).

Section 440.10(2)(b) requires denial of a motion to vacate when the record contains sufficient facts to review the grounds raised on appeal.

People v. Hill · filed 1990-05-17(2)(b)

As to the denial of the CPL article 440 motion without a hearing, we note that the record demonstrates, on its face, sufficient facts to deny the motion to vacate the judgment of conviction upon all the grounds raised by defendant (see, CPL 440.10 [2] [b]; People v Cooks, 67 NY2d 100, 104).