N.Y. Crim. Proc. Law § 440.10

Section 440.10(2)(a) and (c) bar vacatur claims already decided on direct appeal or that could have been raised there.

People v. Purcell · filed 1990-04-16(2)(a), (2)(c)

The claims asserted in support of the application were previously determined on the merits upon the defendant’s direct appeal from the judgment (see, CPL 440.10 [2] [a]; People v Purcell, 80 AD2d 1002), or could have been, but were not raised upon the direct appeal (see, CPL 440.10 [2] [c]), or were unsubstantiated by sworn allegations (see, CPL 440.30 [4] [b]), or, to the extent they were premised on facts not apparent from the record, did not include material allegations which would entitle the defendant to vacatur of the conviction on the ground of ineffective assistance of trial counsel (see, People v Satterfield, 66 NY2d 796, 799-800; People v Baldi, 54 NY2d 137; People v Settembre, 152 AD2d 681).

Section 440.10(2)(c) requires denial of a motion to vacate when the claim could have been raised on direct appeal from the record but was not.

People v. Saldana · filed 1990-05-17(2)(c)

The motion court, however, correctly found that all of the incidents pertaining to the requests to testify appear in or are alluded to in the record and, consequently, defendant could have raised this argument upon direct appeal and did not, mandating its denial (CPL 440.10 [2] [c]).

Section 440.10(2)(b) supports denial of a motion to vacate based on matters in the record that could have been raised on direct appeal.

People v. Gonzalez · filed 1990-02-20(2)(b)

The court did not improvidently exercise its discretion in summarily denying the defendant’s motion to vacate the judgment of conviction. Many of the defendant’s allegations with respect to the claimed ineffectiveness of his trial counsel were based upon matters in the record which could have been raised on direct appeal (see, CPL 440.10 [2] [b]).

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

Arce v. Smith · filed 1989-11-20(2)(c)

On this clear holding Arce’s failure to raise the point constituted a procedural default under state law, and the rule of Wainwright applies.

Section 440.10(2)(c) bars claims supported by facts in the record that the defendant could have raised on direct appeal but did not.

People v. Santillana · filed 1989-10-02(2)(c)

However, sufficient facts appear on the record such that he could have raised these issues on direct appeal, and failed to do so. These claims are therefore barred pursuant to CPL 440.10 (2) (c).

Section 440.10(2)(b) permits denial of a motion to vacate when the grounds can be addressed on direct appeal.

People v. Benyi · filed 1989-07-20(2)(b)

Furthermore, County Court properly denied defendant’s CPL 440.10 motion without a hearing since the grounds raised in the moving papers could either be addressed on his direct appeal (see, CPL 440.10 [2] [b]; People v Cooks, 113 AD2d 975, affd 67 NY2d 100) or were not supported by sufficient factual allegations (see, CPL 440.30 [4] [a], [b]; People v Harris, 109 AD2d 351, 354, Iv denied 66 NY2d 919).

Section 440.10(2) requires denial of a motion that revisits issues already before an appellate court when a further appeal is pending.

People v. Campbell · filed 1974-05-31(2)

And so, the Appellate Term had all of the arguments before it that this court is asked to reconsider, and such reconsideration would be bold, improper and presumptuous, indeed, in the light of the restraints of CPL 440.10 (subd. 2), and particularly paragraph (a) thereof. And since the matter is now pending further appeal in the Court of Appeals, said section 440.10 (subd. 2, par. [b]) further compels restraint upon this court.

Section 440.10(2)(c) requires denial of a motion to vacate when the defendant could have raised the issue on appeal but unjustifiably failed to do so.

People v. Pokoik · filed 1975-09-27(2)(c)

This motion, brought approximately three years after the trial and the conviction therefore must be denied by virtue of CPL 440.10 (subd 2, par [c]).

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

People v. Garrow · filed 1976-05-20(2)(b)

CPL 440.10 (subd 2, par [b]) states that a motion to vacate a judgment must be denied when, at the time of the application, the judgment is appealable or pending on appeal and the record contains sufficient information about the ground or issue raised to permit adequate review on the appeal. ... Because defendant is attempting to relitigate the issues already decided by this court in his direct appeal, the trial court correctly decided the instant motion without a hearing (CPL 440.10, subd 2, par [b]; CPL 440.30, subd 2).

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

People v. Hobson · filed 1978-01-23(2)(b)

Pursuant to provisions of CPL 440.10 (subd 2, par [b]), wherein it states: ”[T]he court must deny a motion to vacate a judgment when: * * * [t]he 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”. Since the defendant has in fact filed a notice of appeal and the defendant may have a sufficient record to raise this question on appeal, this application must be denied.

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

People v. Bye · filed 1978-08-31(2)(c)

Thus, given the limitations of CPL 440.10 (subd 2, par [c]) and the clear direction of the case law, it is evident that though defendant’s rights were violated in 1973, his opportunity to assert these rights was never substantially impaired.

CPL 440.10(2)(c) bars a postjudgment motion raising an issue that could have been raised on direct appeal.

People v. Barker · filed 1979-08-13(2)(c)

We further note that an issue which could have been raised on direct appeal may not be raised by such a motion (see CPL 440.10, subd 2, par [c]).

Section 440.10(2)(a) bars relief on a claim already considered on direct appeal.

People v. King · filed 1981-01-12(2)(a)

Furthermore, the prosecutor’s improper cross-examination of defendant with respect to the holster which he brought back from the army, was considered on defendant’s direct appeal and therefore cannot constitute the basis for relief pursuant to CPL 440.10 (see CPL 440.10, subd 2, par [a]).

Section 440.10(2)(a) bars vacating a conviction on grounds previously determined on the merits on appeal.

People v. Reese · filed 1979-08-27(2)(a)

That branch of the motion based upon the petitioner’s first three contentions is denied on the ground that the issues raised therein were previously determined on the merits upon an appeal from the judgment (CPL 440.10, subd 2, par [a]).

Section 440.10(2)(c) requires denial of a motion raising an issue the defendant could have raised on direct appeal, even after a retroactively effective change in the law.

People v. Cunningham · filed 1980-05-13(2)(c)

This court therefore concludes that a court must deny a motion to vacate judgment where a defendant could have but did not raise an issue on direct appeal, despite a subsequent retroactively effective change in the law controlling that issue.

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.

People v. McKenzie · filed 1982-05-17(2)(b)

A claim of such inadequacy is directed solely to matter which appears upon the face of the record, and a motion pursuant to CPL 440.10 (subd 1, par [h]) to vacate the judgment, as was attempted here, is inappropriate for the reason that CPL 440.10 (subd 2, par [b]) mandates the denial of such application where “[t]he 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” (emphasis added).

Section 440.10(2)(c) does not bar a claim that was absent from the trial record and therefore could not have been raised on direct appeal.

Guyton v. LeFevre · filed 1983-03-29(2)(c)

The trial court could not have rejected this claim on the procedural grounds of section 440.10(2)(c) since this claim was never raised at the Wade hearing and therefore could not have appeared “on the record,” the predicate for determining that it should have been brought on appeal.

Section 440.10(2)(b) requires denial of a motion to vacate when an appeal is pending and the record permits adequate review of the issue on appeal.

People v. Benthall · filed 1982-10-27(2)(b)

“(b) The judgment is, at the time of the motion, appeal-able 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.” ... While this decision may be deemed a modification of my earlier reported opinion, I must reluctantly deny the application to vacate the judgment and leave it to the appellate court to reverse those conclusions of law I have made which are inconsistent with the Johnson decision.

Section 440.10(2)(c) bars grounds for vacating a judgment that could have been raised on appeal when no appeal was taken.

People v. Morales · filed 1983-03-22(2)(c)

The other bases advanced for vacating the judgment clearly could have been raised on appeal, had one been taken (see CPL 440.10, subd 2, par M).

Section 440.10(2)(c) does not bar a collateral competency challenge merely because the defendant failed to raise the issue on direct appeal.

Silverstein v. Henderson · filed 1983-04-12(2)(c)

The State next argues that Silver-stein’s failure to challenge his competence on his direct appeal constitutes a waiver of his constitutional rights under N.Y.Crim. Proc.Law § 440.10(2)(c). ... We cannot agree. ... Thus, we are convinced that the New York courts would reject the argument that, by failing to raise the issue on direct appeal, Silverstein forfeited or waived his right to contest his competence to stand trial.

Section 440.10(2)(a) requires denial of a motion to vacate when the issue was previously determined on the merits on direct appeal; an affirmance without opinion can be such a determination.

Journet v. Coombe · filed 1983-08-01(2)(a)

However, such a motion is moot and must be denied if the issue raised upon the motion was previously determined on the merits in an appeal from the judgment. CPL § 440.10(2)(a). ... Such an affirmance is a determination on the merits of the issues raised by the appeal and would bind the state trial court on those issues if we were to find no exhaustion until petitioner moved the trial court pursuant to CPL § 440.10.

Section 440.10 does not permit a defendant to renew a challenge to a conviction that was raised, decided, and affirmed on direct appeal.

People v. Di Giacomo · filed 1983-09-22(2)(a)

Clearly, in a postconviction application by way of coram nobis or CPL 440.10, defendant could not successfully have renewed a challenge to his Erie County conviction which had been raised, decided and affirmed on direct appeal from the judgment of that conviction (People v Broum, 13 NY2d 201, 204-205; People v Calo, 31 AD2d 550; People v Blando, 29 AD2d 689, 690).

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

People v. Barnes · filed 1984-02-23(2)(a)

“(a) 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”. ... Defendant’s arguments with respect to the hypnosis issue were presented before the Appellate Division and rejected. ... Accordingly, this court declines to apply the decision in Hughes (supra) retroactively. ... For the foregoing reasons, defendant’s application is denied.

Section 440.10 does not permit a defendant to raise plea objections whose basis appears on the face of the record.

People v. Flushing Hospital & Medical Center · filed 1983-11-15

The defendant is precluded from raising these objections in a motion pursuant tp CPL 440.10, since the basis for the motion appears on the face of the record.

Section 440.10(2)(c) requires denial of a motion to vacate when a defendant unjustifiably failed to raise on direct appeal an issue the trial record allowed the appellate court to review.

Williams v. Lefevre · filed 1983-12-30(2)(c)

Pursuant to N.Y.C.P.L. § 440.10(2)(c), ... a State court must summarily deny a motion to vacate judgment when the defendant has failed to raise the issue on his direct appeal in the State court.

Section 440.10(2)(c) requires denial of a motion raising a claim that could have been reviewed on direct appeal from the original record, unless the failure to raise it was justifiable.

People v. White · filed 1984-06-07(2)(c)

However, since the subject matter of defendant’s instant application and all of the necessary facts were sufficiently contained in the original record to have permitted adequate review on the direct appeal, defendant’s present motion was properly denied unless his failure to raise the issue on appeal was justifiable (CPL 440.10, subd 2, par [c]).

Section 440.10(2)(c) does not require dismissal when the evidence supporting the motion was outside the record of the plea proceedings.

People v. Anderson · filed 1984-07-12(2)(c)

Although we agree with defendant that dismissal of his motion is not required by CPL 440.10 (subd 2, par [c]) since the State Police lab report upon which he relies was not a part of the record of the plea proceedings, we conclude that defendant has not raised a ground for vacating the judgment under CPL 440.10 (subd 1).

Section 440.10(2)(b) does not bar a motion during a pending appeal when the record lacks sufficient facts for appellate review of the issue raised.

People v. Hobson · filed 1984-08-01(2)(b)

The court has examined the record, meager as it is, and finds no facts whatsoever to sufficiently permit an appeal of the issue raised. ... So the defendant is procedurally correct in making this motion despite the pending appeal of the judgment.

Section 440.10(2) prevents an unpreserved plea allocution challenge from being raised on a permissive appeal from the denial of a motion to vacate.

People v. Liguori · filed 1984-12-03(2)

In addition, any contention relating to the alleged insufficiency of the defendant’s plea allocution has not been preserved for appellate review (People v Pellegrino, 60 NY2d 636; People v Pascale, 48 NY2d 997, 998; People v McKenzie, 88 AD2d 646) and is not properly before us on the permissive appeal from the order denying his CPL article 440 motion (People v McKenzie, supra; CPL 440.10, subd 2).

Section 440.10(2)(c) requires denial of a motion to vacate when the record permitted adequate appellate review but the defendant unjustifiably failed to pursue it.

People v. Crossen · filed 1985-01-10(2)(c)

Furthermore, the defendant did not appeal from his conviction to the Appellate Division, Second Department. ... CPL 440.10 (2) (c) states, in pertinent part: ... “the court must deny a motion to vacate * * * when * * * ... “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 or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him”. ... Based on the foregoing, the defendant’s motion to set aside his conviction and to dismiss the indictment is denied in all respects.

A rejection on direct appeal of an ineffective-assistance claim based on matters outside the record does not prevent consideration of a later CPL 440.10 motion on similar grounds when the statutory requirements are met.

People v. Welch · filed 1985-02-21

Under such circumstances, a rejection on direct appeal of a claim of ineffective assistance grounded on matters not appearing in the record should not prevent consideration on the merits of a later CPL 440.10 motion on similar grounds ... provided that the statutory requirements (CPL 440.30) are satisfied, as they are in this case.

Section 440.10(2)(c) permits a court to excuse a defendant’s failure to appeal when the circumstances warrant it, even if the error appears on the record.

People v. Angelakos · filed 1985-04-18(2)(c)

Under the particular facts and circumstances herein, the court finds the defendant’s failure to appeal from the judgment of conviction, ... although the error appears on the face of the record excusable. (CPL 440.10 [2] [c].)

Section 440.10(2) requires denial of a motion to vacate when the claims were previously rejected on appeal.

People v. Kelly · filed 1985-04-22(2)(a), (2)(c)

On review of the record and the extensive procedural history of this case, we agree with Criminal Term that under CPL 440.10 (2) (a), (c), defendant’s motion to vacate the judgment must be denied.

Section 440.10(2)(c) bars a claim omitted on appeal only when the trial record permitted adequate appellate review and the defendant’s failure to raise it was unjustifiable.

People v. Harris · filed 1985-07-08(2)(c)

Turning to defendant’s Pate claim and the statutory bar issue, it bears reemphasizing that for a court to apply the procedural bar of CPL 440.10 (2) (c), two conditions must be met: (1) “sufficient facts [must] appear on the record * * * to have permitted, upon appeal from [the] judgment, adequate review of the ground or issue raised upon the motion”, and (2) no review occurred “owing to the defendant’s unjustifiable failure” to perfect an appeal or raise the issue on appeal.

Section 440.10(2) permits denial of a motion to vacate when the judgment is on appeal, appellate relief is available, and the defendant identifies no pertinent evidence outside the record.

People v. Griffin · filed 1985-12-26(2)

Since the judgment was on appeal to this court, the denial of defendant’s motion was proper since appellate relief was available, and defendant failed to demonstrate the existence of pertinent evidence extraneous to the record (see, CPL 440.10 [2]; 440.30 [2]; People v Harris, 109 AD2d 351, 354; People v Donovan, 107 AD2d 433, 443-444).

Section 440.10(2)(c) precludes state postconviction review of a claim the defendant failed to raise at trial or on direct appeal.

Jackson v. Charles C. Scully, Superintendent, Green Haven Correctional Facility · filed 1986-01-14(2)(c)

It is beyond question that, under New York law, Jackson’s failure to raise the issue at trial or on direct appeal precludes further state court review. N.Y.Crim.Proc.Law §§ 440.-10(2)(c), 470.05 (McKinney 1983).

Section 440.10(2)(b) and (c) bar collateral review of a plea allocution’s sufficiency when the plea record permits review on direct appeal.

People v. Cooks · filed 1986-03-20(2)(b), (c)

If the plea proceeding record is sufficient to permit review of the issue on direct appeal, the sufficiency of the allocution cannot be collaterally reviewed in a CPL 440.10 proceeding.

Section 440.10(2) permits denial of a motion to vacate based on a plea-colloquy issue that was available for adequate review on direct appeal.

People v. Caban · filed 1986-04-17(2)

Moreover, adequate appellate review of this issue was available upon appeal from the judgment of conviction. Accordingly, this aspect of the motion was properly denied (see, CPL 440.10 [2]).

Section 440.10 permits a motion based on ineffective assistance of counsel when the claim could not have been raised on appeal by the same counsel.

People v. Dor · filed 1986-06-20(1)(h)

Thus, defendant is precluded from raising any other issues, but properly brings this CPL article 440 motion on the grounds of ineffective assistance of counsel.

Under § 440.10(2)(a), a court need not consider retroactivity when a claimed new decision does not change controlling law.

People v. Mehan · filed 1986-07-25(2)(a)

For the reasons which follow, this court holds and determines that Michigan v Jackson (supra) cited by defendant does not represent a change in the law in the State of New York controlling such right to counsel issue, and that the defendant’s motion should accordingly be denied. ... Defendant has more than adequately set forth and explained his position in his moving papers, and the question of retroactivity does not even arise absent a change in controlling law.

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

People v. Ferguson · filed 1986-10-23(2)(c)

Since the issue of youthful offender treatment could have been reviewed on direct appeal, based upon the legal authority discussed supra, we hold that a CPL 440.10 motion to vacate this defendant’s conviction on that ground must be denied.

Section 440.10(2)(c) bars a motion to vacate based on an issue that could have been raised on appeal when the defendant has not shown a denial of due process.

People v. Dean · filed 1986-12-19(2)(c)

Moreover, since the issue presented could have been raised on appeal and defendant has not shown that he was denied due process (see, People v Codarre, 10 NY2d 361, 363, on remittal 14 NY2d 370), his motion to set aside the conviction must be denied (see, CPL 440.10 [2] [c]; People v Brown, 13 NY2d 201, 206, mot to amend remittitur granted 13 NY2d 1124, cert denied 376 US 972; People v Shapiro, 3 NY2d 203, 206).

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

People v. Holdridge · filed 1987-03-26(2)(c)

However, this issue could have been raised on the appeal from the judgment of conviction (see, 103 AD2d 894, supra). Accordingly, the motion in this respect was properly denied (CPL 440.10 [2] [c]).

Section 440.10(2)(a) does not require denial after a prior appeal when the motion presents matters outside the appellate record.

Lotze v. Hoke · filed 1987-02-25(2)(a)

Since the trial court at a § 440.10 hearing would be considering matters that were not on the record, the previous appeal should not compel denial of the § 440.10 motion.

Section 440.10(2)(b) precludes collateral review of claims that can be resolved from the trial record on direct appeal.

People v. Avery · filed 1987-04-09(2)(b)

In any event, since the record itself contains all of the facts upon which the resolution of these issues turns, they are inappropriate for collateral review under CPL article 440 (see, CPL 440.10 [2] [b]; People v Cooks, 67 NY2d 100, 104).

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

Roman v. Abrams · filed 1987-06-09(2)(c)

Section 440.10(2)(c), however, requires the court to deny such a motion when there has been no appellate review of the argument because of the defendant’s unjustifiable failure to raise it on appeal.

Section 440.10 permits a motion to vacate a plea for an error that is not apparent from the record; an apparent error must be raised on direct appeal.

People v. Angelakos · filed 1987-07-07(2)(b)

A posttrial motion to vacate a plea is only warranted when the error is not apparent from the record.

Section 440.10 is not an appropriate way to challenge a plea allocution when the record permits review of that issue on direct appeal.

People v. Morgan · filed 1987-12-10

Inasmuch as sufficient facts appear on the record to permit review of the adequacy of the plea allocution, a CPL 440.10 motion to vacate is not appropriate (People v Cooks, 67 NY2d 100).

Section 440.10(2)(b) does not permit denial of a motion on direct-appeal grounds when the primary issues depend on matters outside the trial record.

People v. Palmer · filed 1988-02-04(2)(b)

Initially, we note that inasmuch as the primary issues raised involve matters not in the record on appeal from the trial, it was improper for County Court to deny defendant’s motion upon the authority of CPL 440.10 (2) (b).

Section 440.10(2)(a) bars vacating a conviction on a ground that was or could have been raised on direct appeal.

People v. Hargrove · filed 1988-03-28(2)(a)

The remaining portion of the defendant’s motion to set aside his judgment of conviction was properly denied by the Supreme Court since the ground raised by the defendant was or could have been raised on direct appeal (see, CPL 440.10 [2] [a]; People v Hargrove, 80 AD2d 753, lv denied 52 NY2d 1077), was conclusively refuted by unquestionable documentary proof (CPL 440.30 [4] [c]), and was contradicted by a court record (CPL 440.30 [4] [d] [i]).

Section 440.10(2)(a) permits a court to consider a claim previously decided on appeal when an intervening, retroactively effective change in law controls the issue.

People v. Graham · filed 1988-05-19(2)(a)

Under CPL 440.10 (2) (a), a court must deny a motion to vacate judgment when "[t]he ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment”. There is an exception to this rule for cases where there has been an intervening "retroactively effective change in the law controlling such issue” (CPL 440.10 [2] [a]). ... This court therefore agrees with defendant’s claim that there has been a retroactively effective change in the law controlling the issue he previously raised on appeal, and will thus proceed to address the merits of defendant’s motion.

A defendant must move under CPL 440.10 to vacate the judgment to preserve a claim of defects in a guilty plea for appellate review.

People v. Smith · filed 1988-12-29

The defendant did not preserve his claim regarding defects in his guilty pleas, because he did not move pursuant to CPL 440.10 to vacate the judgment (see, People v Pellegrino, 60 NY2d 636, 637; People v Torres, 111 AD2d 837).

Section 440.10(2)(a) requires denial of a motion to vacate when the ground or issue was decided on appeal; additional facts explaining that issue do not make it a new ground or issue.

People v. Charles Lyon, Lyon Coram Auto Body, Inc., & L.A.L. Leasing · filed 1989-04-24(2)(a)

CPL 440.10 (2) (a) precludes a collateral attack on a conviction based on an "issue” or "ground” which was the subject of appellate review. The trial attorney has provided me with the background information which created the claimed conflict of interest. But the "conflict of interest” — not the precipitating facts leading to its creation — is the issue, or ground, for purposes of the statute.

CPL 440.10 (2) bars a motion to vacate based on a claim raised on direct appeal or on record facts that could have been raised there.

People v. Hernandez · filed 1993-03-08(2)

Finally, we note that to the extent that the defendant’s motion was based on a claim previously advanced on direct appeal, or upon facts appearing in the record which could have been raised on direct appeal, it was properly denied pursuant to CPL 440.10 (2) (see, People v Cooks, 67 NY2d 100; People v Rossney, 186 AD2d 926; People v Pachay, 185 AD2d 287; People v Skinner, 154 AD2d 216).

Section 440.10(2)(b) requires denial of a motion to vacate when the trial record permits adequate appellate review of the claim.

People v. Cohen · filed 1993-04-13(2)(b)

Under these circumstances, sufficient facts appear on the record regarding the issue raised upon the motion to permit adequate review thereof upon appeal. The defendant’s motion must be denied for this reason alone (see, CPL 440.10 [2] [b]).

Section 440.10(2)(b) requires denial of a motion to vacate when an appeal is pending and the claim can be reviewed from the existing record.

People v. Gianfrate · filed 1993-04-29(2)(b)

Initially, we note that defendant’s postconviction motions were properly denied, as they were based on the details of the plea allocution and sentencing that were already on the record (see, CPL 440.10 [2] [b]; People v Hill, 146 AD2d 823, 826, lv denied 73 NY2d 1016).

Section 440.10 does not provide a basis for a motion when the defendant identifies no reasonable grounds for relief or matters outside the record unavailable for direct appellate review.

People v. Garcia · filed 1993-06-24(2)(b)

Defendant’s claim that he was prejudiced by his attorney’s failure to move for postverdict relief under CPL 440.10, on the ground that the prosecutor pressured the jury into reaching its verdict, is without merit because when defendant raised the issue prior to sentencing he did not allege or demonstrate any reasonable basis for such motion or that the claim was based on matters outside the record for which direct appellate review would not be available (see, CPL 440.10 [1] [h]; [2] [b]).

Section 440.10(2)(b) permits denial of a motion to vacate when its arguments concern matters of record.

People v. Franco · filed 1993-04-26(2)(b)

The defendant’s post-judgment motion was properly denied. The arguments raised therein were either matters of record (CPL 440.10 [2] [b]; 440.30 [2]) or were rebutted by unquestionable documentary proof (CPL 440.30 [4] [c]).

Section 440.10(2) bars consideration of grounds previously decided on appeal or unjustifiably left unraised.

People v. Taveras · filed 1993-07-08(2)

With one exception, the grounds raised by the defendant do not merit consideration since they were either previously determined on appeal or the defendant unjustifiably failed to raise them.

Grounds for vacating a guilty plea that were not raised in a CPL 440.10 motion are waived on appeal.

People v. Hierl · filed 1993-10-28

On appeal, defendant for the first time attempts to interpose a variety of other reasons for vacating his guilty plea. None of these were articulated in the CPL 440.10 motion. We deem them waived and decline to discuss them.

Section 440.10 permits denial without a hearing when a defendant knew of a claim at trial and could have made a record to raise it on direct appeal.

People v. Rodriguez · filed 1994-02-22(2)(c), (3)(a)

The defendant was aware of the existence of the notes in question at the time of trial. Therefore, he could have created a sufficient record to enable him to raise this issue on direct appeal, and he could have raised this issue on his direct appeal (see, People v Rodriguez, 114 AD2d 525). Thus, this branch of the defendant’s CPL 440.10 motion was properly denied without a hearing (see, People v Cooks, 67 NY2d 100; People v Skinner, 154 AD2d 216; CPL 440.10 [2] [c]; [3] [a]).

Claims not raised in a CPL 440.10 motion to vacate a judgment are unpreserved for appellate review of its denial.

People v. Huston · filed 1994-04-28

Defendant’s claims are unpreserved for this Court’s review as he failed to raise them in his motion to vacate the judgment.

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

Bentley v. Scully · filed 1994-05-11(2)(c)

Bentley has already completed his direct appeal in state court and another motion to vacate the judgment of conviction pursuant to CPL § 440.10 would -be denied by the state court.

Section 440.10(2)(b) directs claims that the record permits an appellate court to review to direct appeal.

People v. Johnson · filed 1994-06-20(2)(b)

Moreover, the claim is properly addressed on direct appeal, as the record contains sufficient evidence for this Court to review it (see, CPL 440.10 [2] [b]; People v Cooks, 67 NY2d 100, 103; People v Brown, 161 AD2d 527, 528).

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

People v. Ford · filed 1994-06-27(2)(c)

Insofar as his motion could be deemed to be a motion to vacate the judgment of conviction pursuant to CPL 440.10, denial of the motion is mandated by CPL 440.10 (2) (c) because the issue could have been raised on direct appeal based upon the record of the defendant’s plea allocution (see, People v Cooks, 67 NY2d 100).

A denial without a hearing of a § 440.10(1)(h) motion alleging a due process violation is reviewable by the Court of Appeals for abuse of discretion as a matter of law.

People v. Baxley · filed 1994-06-30(1)(h)

Contrariwise, insofar as defendant seeks postjudgment relief under CPL 440.10 (1) (h), alleging that his conviction was procured in violation of his due process right to pretrial disclosure of Brady material, such a due process claim ... is reviewable by this Court to determine whether the denial of this portion of defendant’s motion without a hearing constituted an abuse of discretion as a matter of law (see, People v Crimmins, 38 NY2d, at 418-419, supra).

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

People v. Perez · filed 1994-09-06(2)(c)

Defendant failed to preserve the issue in the trial court and to pursue the specific issue in the appeal which was eventually perfected. Such unjustifiable failure cannot serve to expand appellate review through collateral attack in direct contravention of CPL 440.10 (2) (c).

Section 440.10 provides a motion to vacate a conviction; failing to make that motion or move to withdraw a guilty plea can leave a plea challenge outside appellate review.

People v. Jeter · filed 1994-09-30

Defendant’s first contention is not properly before us. Defendant may not be relieved of his initial guilty plea because he failed to move to withdraw it (see, CPL 220.60 [3]) or to vacate the judgment of conviction (see, CPL 440.10; People v Mayers, 74 NY2d 931; cf., People v Lopez, 71 NY2d 662, 665).

Section 440.10 bars a motion to vacate based on matters in the record that could have been raised on direct appeal.

People v. Jones · filed 1994-12-13

The court did not err in denying defendant’s CPL 440.10 motion to vacate the judgment since it properly found that defendant’s claims were based on matters in the record that could have been raised on direct appeal (People v Gonzalez, 158 AD2d 615, lv denied 76 NY2d 735).

Section 440.10(2) requires denial of a motion to vacate based on a claim raised on direct appeal or on record facts that could have been raised there.

People v. Peterson · filed 1995-02-10(2)

However, "to the extent * * * defendant’s motion [is] based on a claim previously advanced on direct appeal, or upon facts appearing in the record which could have been raised on direct appeal,” such claim is properly denied pursuant to CPL 440.10 (2) (see, People v Hernandez, 191 AD2d 511, 512). In the instant case, the Appellate Division, Fourth Department, rejected defendant’s claim that he was denied effective assistance of counsel due to counsel’s alleged inadequate cross-examination of prosecution witnesses and his faulty application of "renunciation” as a defense.

A CPL 440.10 motion may be denied when the defendant failed to preserve a Rosario claim at trial.

People v. Saunders · filed 1994-12-22

The court properly denied defendant’s CPL 440.10 motion on the ground that defendant’s Rosario claim was unpreserved.

Section 440.10 bars claims that the defendant could have raised on a prior appeal when the record was sufficient to permit review.

People v. Shields · filed 1995-02-16(2)(c)

Since he failed to raise these claims in the prior appeal, he is precluded from raising them now.

Section 440.10(2)(e) bars a collateral attack when the defendant unjustifiably failed to raise the issue on an appeal he actually perfected.

Bacchi v. Senkowski · filed 1995-05-15(2)(e)

Further, under CPL § 440.10(2)(e), a collateral attack on a judgment will fail where the defendant unjustifiably failed to raise the relevant ground or issue upon the appeal actually perfected by him.

Section 440.10(2)(b) precludes a motion to vacate from raising a challenge to Grand Jury proceedings that is properly reviewable on appeal.

People v. Brown · filed 1995-07-20(2)(b)

Beyond that, County Court did not err in finding that some of the matters that were raised therein, including an attack on the propriety of the Grand Jury proceedings, were not the proper subjects of a posttrial motion (see, CPL 440.10 [2] [b]; People v Cooks, 67 NY2d 100, 104), and that the remainder could be adequately reviewed, and determined to be meritless, without the need for an evidentiary hearing (see, People v Satterfield, 66 NY2d 796, 799; see also, People v Burke, 197 AD2d 731).

CPL 440.10 cannot be used to challenge the sufficiency of a plea allocution when the alleged defect appears on the record and can be reviewed on direct appeal.

People v. Hill · filed 1995-10-19

Further, where the purported failure to require defendant to allocute all the elements of the crime appears on the record, the sufficiency of the plea allocution can be reviewed only by direct appeal and cannot be attacked in a CPL 440.10 proceeding and used as a substitute for direct appeal (see, People v Cooks, 67 NY2d 100).

Section 440.10(2)(c) bars a motion to vacate based on an issue the defendant could have raised on direct appeal but did not.

People v. James · filed 1996-04-01(2)(c)

With regard to the alleged Rosario violation, although this issue was discussed by the parties on the record prior to the trial, the defendant failed to raise the issue on his direct appeal (see, People v Rodriguez, 114 AD2d 525). Thus, this branch of his motion was properly denied (see, People v Cooks, 67 NY2d 100; People v Skinner, 154 AD2d 216; CPL 440.10 [2] [c]).

Section 440.10(2) prevents a court from considering matters in the trial record that were or could have been raised on direct appeal.

People v. Smith · filed 1996-04-22(2)(a), (b), (c)

Moreover, not only am I bound by the recent decision of the Appellate Division, but also I must not consider matters in the original trial record which were or could have been raised on direct appeal.

Section 440.10(2) and (3) impose procedural barriers for claims omitted from direct appeal or not preserved in the trial record; a denial on those grounds can bar federal habeas review absent cause and prejudice.

Nichols v. Kelly · filed 1996-05-01(2)(e), (3)(a)

The motion was denied based upon Section 440.10(2) and (3), which provisions include procedural impediments to bringing a Section 440.10 motion,— 1.e., failure to raise on direct appeal issues sufficiently reflected in the trial record (§ 440.10(2)(e)), and failure to preserve objection in trial record (§ 440.10(3)(a)). Petition Ex. 10. These statutory provisions constitute adequate and independent state grounds for the court’s determination.

A claim that could, with due diligence, have been placed on the record is not a proper basis for a motion to vacate judgment under section 440.10(3)(a).

People v. Blake · filed 1996-10-24(3)(a)

Defendant’s purported Rosario claim regarding the People’s failure to serve defense counsel with a case summary containing his parole officer’s interview with the complainant could, with due diligence, have been placed on the record, and is thus not the proper subject of a motion to vacate judgment (CPL 440.10 [3] [a]).

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

People v. Byrdsong · filed 1996-12-16(2)(c)

Pursuant to CPL 440.10 (2) (c) a court must deny a postjudgment motion to vacate a conviction when sufficient facts appear in the record so that an issue may be adequately reviewed on a direct appeal and the defendant unjustifiably failed to raise the claim on appeal (see, e.g, People v Cooks, 113 AD2d 975, affd 67 NY2d 100; see also, People v Rodriguez, 201 AD2d 683; People v Skinner, 154 AD2d 216). Insofar as the record of the Sandoval hearing suffices to demonstrate that the proceeding was conducted in the defendant’s absence, the defendant’s failure to raise this issue on his direct appeal (People v Byrdsong, 133 AD2d 164) precludes postjudgment relief.

Section 440.10(2)(c) bars review of a claim the defendant failed to raise on direct appeal.

People v. Burgos · filed 1997-04-07(2)(c)

The defendant’s claim that the People failed to disclose to him a chemist’s request for his hair samples is procedurally barred from review, since he failed to raise that issue on his direct appeal (see, CPL 440.10 [2] [c]; see also, People v Cooks, 67 NY2d 100; People ex rel. Gibbs v Vincent, 39 NY2d 918).

Section 440.10(2)(c) bars a claim that the record permitted counsel to raise on direct appeal, even if counsel made a tactical decision to omit it.

People v. Felton · filed 1997-05-01(2)(c)

The motion court was procedurally barred from considering the merits of defendant’s CPL 440.10 motion. Sufficient facts appeared on the record to have permitted appellate counsel to raise the issue of written jury instructions on defendant’s 1984 direct appeal (see, CPL 440.10 [2] [c]). ... Nevertheless, since appellate counsel had the opportunity to raise the issue, his failure to do so for whatever reason must be considered "unjustifiable” for purposes of the statute (see, People v Byrdsong, 234 AD2d 468).

Section 440.10(2)(c) requires denial of a motion to vacate when the error was apparent on the record and the defendant unjustifiably failed to seek direct appellate review.

People v. Jackson · filed 1997-04-25(2)(c)

The error that occurred in this case is readily apparent on the face of the record. It was therefore incumbent upon the defendant to seek vacatur by direct appeal. The fact that, at the time of the plea, the court, prosecutor and defense counsel all failed to recognize that the defendant was erroneously pleading to the felony charge of auto stripping is not an excusable reason not to take or perfect an appeal.

Section 440.10(2)(b) does not require denial during a pending appeal when the trial record cannot support adequate review of a newly discovered evidence claim; the claim requires a hearing.

People v. Stover · filed 1997-06-16(2)(b)

It was error for the court to deny the motion without a hearing. The trial record on the appeal from the judgment does not afford an adequate basis for the trial court, or this Court, to determine the merits of the defendant’s claim of newly discovered evidence.

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

Edkin v. Travis · filed 1997-07-01(2)(c)

Further, collateral review is barred because the constitutional nature of these claims could have been raised on direct appeal. N.Y. Crim. Proc. Law §§ 440.10(2)(a), 440.10(2)(c).

Section 440.10 bars a motion to vacate a conviction based on claims the defendant could have raised on direct appeal.

Hill v. Keane · filed 1997-12-22(2)(c)

Hill’s July 20, 1995 petition for collateral relief from his convictions pursuant to CPL § 440.10(1) was not properly filed because it relied solely on record facts. Under New York law, a defendant is procedurally barred from moving to vacate a judgment of conviction under § 440.10(1) when he could have raised his claims on direct appeal.

Section 440.10(2)(b) directs claims apparent from the record and capable of review on direct appeal to that appeal.

People v. Webster · filed 1998-02-04(2)(b)

The contentions of defendant that he was denied a prompt verdict and his right to an “effective summation” are a matter of record that could be raised on direct appeal (see, CPL 440.10 [2] [b]).

Section 440.10 permits denial of a motion to vacate based on claims that could have been raised on direct appeal.

People v. Gonzalez · filed 1998-01-26(2), (3)

His claims that the People failed to disclose Rosario material (see, People v Rosario, 9 NY2d 286, cert denied 368 US 866) and Brady material (see, Brady v Maryland, 373 US 83) are matters which could have been raised on direct appeal (see, CPL 440.10 [2], [3]; People v Gonzalez, 158 AD2d 615).

Section 440.10(2)(c) bars a motion to vacate when the defendant failed to appeal the judgment without justification.

People v. Wilson · filed 1998-06-02(2)(c)

That branch of defendant’s motion which seeks an order, pursuant to CPL 440.10 (1) (h), vacating his 1987 judgments of conviction for grand larceny in the third degree and criminal possession of stolen property in the second degree is denied. (CPL 440.10 [2] [c].) No appeal was taken from said judgments and defendant’s alleged reasons for his failure to do so, even if proven, would not constitute justification therefor.

Section 440.10 cannot be used as a substitute for an appeal by a defendant who waived the right to appeal.

People v. Alexander · filed 1998-12-07

The defendant waived his right to appeal and cannot use CPL 440.10 as a substitute for an appeal (see, People v Hill, 220 AD2d 905).

Section 440.10(2)(c) bars claims that should have been raised on direct appeal.

People v. Hall · filed 1998-12-15(2)(c)

Defendant’s claims either should have been raised on his direct appeal (CPL 440.10 [2] [c]) or consisted of conclusory unsupported allegations by defendant that were contradicted by the plea and sentencing minutes.

Section 440.10(2)(b) permits denial of a motion to vacate a judgment while an appeal is pending.

People v. Livingston · filed 1999-06-17(2)(b)

Also, County Court properly denied defendant’s motion due to the pendency of this appeal (see, CPL 440.10 [2] [b]).

Section 440.10(2)(a) requires denial of a motion to vacate a judgment when the issue was previously decided on direct appeal, and that bar can preclude federal habeas review.

Veras v. Strack · filed 1999-07-20(2)(a)

The state trial court rejected Ver-as’s CPL § 440 motion as to sentencing issues because CPL § 440.10(2)(a) requires denial of such a motion when the issue had been raised on direct appeal. (See Killian Aff. ¶ 11.) The cases hold that CPL § 440.10(2)(A) is an “adequate and independent” state procedural ground barring federal habeas review.

Section 440.10(2)(c) requires summary denial of a motion to vacate when the claimed defects appear on the record underlying the judgment.

People v. Nunez · filed 1999-08-23(2)(c)

The purported deficiencies in the indictment and plea which were relied upon by the Supreme Court appear on the record underlying the judgment. Thus, the motion should have been summarily denied (see, CPL 440.10 [2] [c]; see also, People v Cooks, 67 NY2d 100).

Section 440.10(2)(c) requires denial of a motion when the claimed error appears in the trial record and could have been raised on direct appeal.

People v. Brayley · filed 1999-10-01(2)(c)

The court was required to deny defendant’s motion because the jury charge appears on the trial record, and the issue could have been raised on defendant’s direct appeal (see, CPL 440.10 [2] [c]).

Section 440.10(2)(c) bars a motion to vacate from being used as a belated appeal of an issue apparent on the record.

People v. Jackson · filed 1999-11-30(2)(c)

Defendant’s motion to vacate his 1994 conviction was properly denied on the basis of CPL 440.10 (2) (c). A CPL 440.10 motion may not be used as a device to take a belated appeal on an issue that appears on the face of the record (People v Cooks, 67 NY2d 100).

Section 440.10(2)(a) and (c) bars claims already decided on direct appeal or that could have been raised there.

People v. Su · filed 1999-12-06(2)(a), (2)(c)

The claims asserted in support of the application were either previously determined on the merits upon the defendant’s direct appeal ... from the judgment (see, CPL 440.10 [2] [a]; People v Shih-Wei Su, 213 AD2d 502), or could have been, but were not raised upon the direct appeal (see, CPL 440.10 [2] [c]).

Section 440.10(2)(c) bars a claim that the trial record permitted the defendant to raise on direct appeal but that the defendant unjustifiably failed to raise.

People v. Smith · filed 2000-02-16(2)(c)

Further, although sufficient facts appear on the trial record to have permitted adequate appellate review of the contention that defendant was denied effective assistance of counsel, he unjustifiably failed to raise that contention on his appeal from the judgment of conviction (People v Smith, 209 AD2d 996, lv denied 85 NY2d 914; see, CPL 440.10 [2] [c]; People v Orr, 240 AD2d 213, 214, lv denied 90 NY2d 942; People v Skinner, 154 AD2d 216, 221, lv denied 76 NY2d 796).

Section 440.10(2)(b) and (c) bar using a motion to vacate a judgment as a substitute for direct appeal.

People v. Kotler · filed 2000-04-10(2)(b), (c)

The defendant’s claims cannot be raised in a motion pursuant to CPL 440.10 as a substitute for direct appeal (see, CPL 440.10 [2] [b], [c]; People v Cooks, 67 NY2d 100).

Section 440.10(2)(b) requires denial of a motion to vacate when the claimed error appears sufficiently in the trial record for appellate review.

People v. West · filed 2000-04-20(2)(b)

Finally, County Court properly denied defendant’s CPL 440.10 motion to vacate the judgment. The prosecutorial misconduct claimed on the motion ... sufficiently appeared in the trial record to permit appellate review thereof (see, CPL 440.10 [2] [b]).

Section 440.10 bars collateral review of claims that were or could have been raised on direct appeal.

Lurie v. Wittner · filed 2000-09-26(2)(a), (2)(c)

Collateral review of a New York conviction is available in the form of a motion to vacate the judgment. See N.Y. Crim. Proc. Law §440.10 (McKinney 1994). Here, however, Lurie has exhausted all avenues of direct appeal (including his one request for leave to appeal to the Court of Appeals), and collateral review is barred for claims that were or could have been raised on direct appeal (as could the rule of lenity).

Section 440.10(2)(C) bars state collateral review of claims that could have been raised on direct appeal but were not.

Thomas v. Greiner · filed 2000-06-15(2)(C)

In addition, the speedy trial and excessive sentence claims could have been raised on direct appeal but were not, and thus were barred from all state collateral review on that basis.

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

People v. Hickey · filed 2000-11-02(2)(c)

With respect to defendant’s claim that counsel was ineffective because he failed to move to withdraw defendant’s guilty plea, County Court correctly concluded that this matter is not appropriately raised in a CPL 440.10 motion because it could have been resolved in the context of defendant’s direct appeal from the judgment of conviction (see, CPL 440.10 [2] [c]; People v Wong, 256 AD2d 724, lv denied 93 NY2d 903).

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

People v. Figueroa · filed 2001-01-02(2)(a)

Consequently, as defendant’s current claim “was previously determined on the merits upon an appeal from the judgment,” his present motion must be denied (GPL 440.10 [2] [a]).

Section 440.10(2)(b) permits summary denial of a motion that raises issues reviewable on direct appeal.

People v. Watson · filed 2001-06-19(2)(b)

Summary denial of defendant’s CPL 440.10 motion was proper since it raised issues that may be reviewed on direct appeal (see, CPL 440.10 [2] [b]).

Section 440.10(2)(a) and (c) require denial of claims previously decided on appeal or unjustifiably omitted from direct appeal, but they do not set conditions for filing a motion to vacate.

Artuz v. Bennett · filed 2000-11-07(2)(a), (2)(c)

Neither provision purports to set forth a condition to filing, as opposed to a condition to obtaining relief. Motions to vacate that violate these provisions will not be successful, but they have been properly delivered and accepted so long as the filing conditions have been met. Consequently, the alleged failure of respondent’s application to comply with §§440.10(2)(a) and (c) does not render it “[im]properly filed” for purposes of § 2244(d)(2).

Section 440.10(2)(b) bars vacating a judgment on record-based grounds when an appeal is pending and the record permits adequate appellate review.

People v. Ramgeet · filed 2000-11-14(2)(b)

That motion was improperly granted since the court relied on matters appearing on the record in vacating the conviction, defendant’s appeal was pending and there were sufficient facts in the record to permit adequate review upon appeal (CPL 440.10 [2] [b]; see also, People v Swackhammer, 260 AD2d 939, 941, lv denied 93 NY2d 1028).

Section 440.10(2)(c) bars a motion to vacate judgment on grounds that could and should have been raised on a direct appeal the defendant never pursued.

People v. Barber · filed 2001-02-01(2)(c)

Addressing defendant’s CPL 440.10 motion first," we note that much of it was properly denied on the ground that it raised issues which could and should have been raised by defendant on direct appeal, which defendant never pursued (see, CPL 440.10 [2] [c]; People v Jackson, 266 AD2d 163, lv denied 94 NY2d 921).

Section 440.10(2)(c) requires denial of a motion to vacate when all facts needed to decide the claim appear in the record.

People v. Alcock · filed 2001-02-13(2)(c)

CPL 440.10 (2) (c) requires a court to deny a motion to vacate a judgment if all the necessary facts relating to the legal issue appear “on the record” (People v Cooks, 67 NY2d 100; People v Sadness, 300 NY 69). ... The motion to vacate the judgment based on errors in the plea allocution and the Court’s failure to advise the defendant of the requirement that after his incarceration he would be required to serve a term of postrelease supervision is denied.

Section 440.10 does not permit a motion to vacate a conviction to substitute for a direct appeal when the defendant could have raised the claim on appeal but did not.

People v. Allen · filed 2001-07-02

A motion to vacate a judgment of conviction pursuant to CPL 440.10 cannot be made as a substitute for a direct appeal from the judgment when the defendant could have raised his claims on appeal, but failed to do so.

Section 440.10(2)(b) does not bar a motion based on matters outside the record that could not be reviewed on direct appeal.

People v. Delarosa · filed 2001-10-29(2)(b)

To the extent the defendant’s motion was based on his counsel’s failure to timely serve an alibi notice, the court erroneously concluded that the motion was procedurally barred. The defendant’s claim involves matters dehors the record which could not be reviewed on direct appeal.

Section 440.10(2)(b) supports denying a motion to vacate when the issues it raises are addressed on direct appeal.

People v. Motte · filed 2001-07-19(2)(b)

Furthermore, we perceive no basis upon which to disturb County Court’s summary denial of defendant’s motion pursuant to CPL 440.10 inasmuch as the issues raised therein are either addressed as part of this direct appeal (see, CPL 440.10 [2] [b]; People v Livingston, 262 AD2d 786, lv denied 94 NY2d 881), unsupported by sufficient factual allegations (see, CPL 440.30 [4] [a]; People v Benyi, 152 AD2d 864, lv denied 74 NY2d 894), or have already been addressed by this Court (see, People v La Motte, 276 AD2d 931).

Section 440.10 does not permit a motion to vacate based on errors apparent on the record that could have been or were raised on direct appeal.

People v. Pham · filed 2001-10-18

Initially, we note that County Court was correct in denying defendant’s postconviction motion to vacate the judgment or set aside the sentence, as all of the allegations of error appear on the record and could have and/or have been raised on direct appeal.

CPL 440.10 (2) (c) does not require denial for failure to raise a claim on direct appeal when the record lacked facts needed for adequate review.

People v. Johnson · filed 2001-11-01(2)(c)

Accordingly, County Court erred in concluding that denial of the motion was required by defendant’s failure to pursue the ineffective assistance of counsel claim on direct appeal (cf., People v Hickey, 277 AD2d 511, lv denied 95 NY2d 964).

Section 440.10(2)(c) requires denial of a motion to vacate when the issues could have been raised on direct appeal but were not.

People v. La Mountain · filed 2001-11-01(2)(c)

As properly determined by County Court, all of those issues could have been, but were not, raised on direct appeal, requiring denial of defendant’s motion pursuant to CPL 440.10 (2) (c).

Section 440.10(2)(c) does not permit a motion to vacate based on a record-based legal claim that could have been raised before final judgment.

People v. Mower · filed 2002-02-14(2)(c)

Because 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 (see CPL 440.10 [2] [c]; 470.05 [2]; People v Cooks, 67 NY2d 100, 104 [1986]).

Section 440.10 provides the motion procedure for ineffective assistance claims that rest largely on facts outside the trial record.

People v. Taborn · filed 2002-03-07

Since defendant’s ineffective assistance claim rests largely on allegations dehors the record concerning matters of strategy, preparation of witnesses and consultations between defendant and counsel, it would require a CPL 440.10 motion (see, People v Love, 57 NY2d 998).

Section 440.10 provides the appropriate motion procedure for ineffective-assistance claims based on material outside the trial record.

People v. Grantier · filed 2002-06-14

Those contentions are “based on material dehors the record, and thus the appropriate procedural vehicle is a motion pursuant to CPL 440.10” (People v Wooten, 283 AD2d 931, 933, Iv denied 96 NY2d 943).

Section 440.10 is a proper way to raise an ineffective assistance claim based on advice that was not placed on the plea or sentencing record.

People v. McDonald · filed 2002-07-18(1)(h)

Although defendant correctly raised this claim in a CPL 440.10 motion, since counsel’s misadvice was not placed on the record and the issue of deportation was not raised during the plea colloquy or sentencing (see, People v Ramos, 63 NY2d 640, 643), we ultimately find that he failed to make a sufficient showing of prejudice to entitle him to vacatur of his plea or to a hearing.

Section 440.10(2)(c) bars vacatur when sufficient facts in the record permitted appellate review.

People v. Forbes · filed 2002-05-13(2)(c)

Nonetheless, sufficient facts appearing in the record to have permitted appellate review, defendant is procedurally barred from obtaining the relief he has requested (CPL 440.10 [2] [c]; People v Cooks, 67 NY2d 100 [1986]).

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

People v. Dover · filed 2002-05-28(2)(c)

The defendant’s alleged entrapment defense is based largely upon matters in the trial record. As such, the defendant could have raised his ineffective assistance claims, based upon counsel’s alleged failure to raise an entrapment defense, on his direct appeal (see CPL 440.10 [2] [c]). His inexcusable failure to do so precludes him from raising these claims on this motion.

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

Katowski v. Greiner · filed 2002-07-24(2)(c)

New York law would preclude petitioner from raising those allegations in state court now, because he could have raised them on direct appeal but failed to do so. CPL § 440.10(2)(c).

Section 440.10(2)(e) can preclude collateral review of claims decidable from the trial-court record, but the court could not find that bar applicable without enough information about the record.

Carpenter v. Reynolds · filed 2002-07-27(2)(e)

Accordingly, the Court is unable to find, as a matter of state law, that Carpenter’s present claims could be decided by examining the trial-court record, and thus, that collateral review by way of a CPL § 440.10 motion is precluded pursuant to CPL § 440.10(2)(e).

Section 440.10(2)(c) bars collateral review of a claim the defendant failed to raise on direct appeal.

Pressley v. Bennett · filed 2003-01-03(2)(c)

Because Pressley failed to raise the federal issue before the Court of Appeals, Pressley no longer has the right to raise his claim under New York law either on direct appeal, see N.Y.Court Rules § 500.10(a), or on collateral review. See CPL § 440.10(2)(c). In other words, Pressley has no further recourse in state court.

Section 440.10(2)(a) and (c) bars a motion to vacate based on an issue decided on direct appeal or an issue the defendant unjustifiably failed to raise on direct appeal despite an adequate record.

People v. Saunders · filed 2003-01-23(2)(a), (2)(c)

Since the issue of whether defendant was denied his right to testify before the grand jury (see CPL 190.50 [5]) was previously raised on the direct appeal from his judgment of conviction, and found lacking in merit by this Court, it is not subject to review under CPL 440.10 (2) (a). ... In our view, the present arguments should have been raised on his direct appeal as sufficient facts appear in the trial record to have permitted adequate review of these issues, however, defendant failed to raise them at that time (see CPL 440.10 [2] [c]).

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

People v. Lindsey · filed 2003-02-20(2)(c)

The applicable provision here, CPL 440.10 (2) (c), provides that such a motion must be denied where “[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 raise such ground or issue upon an appeal actually perfected” (CPL 440.10 [2] [c]). ... Accordingly, because defendant’s claim could have been, but was not, raised on his direct appeal, the motion was properly denied (see generally People v La Mountain, 288 AD2d 503, 504, lv denied 98 NY2d 731).

Section 440.10(2)(a) bars a motion to vacate a judgment on a ground already decided on the merits on direct appeal.

Hutchings v. Herbert · filed 2003-04-09(2)(a)

Collateral review of this claim is unavailable because it was previously determined on the merits on direct appeal. CPL §§ 440.10(2)(a); 440.10(2)(c)(barring review if claim could have been raised on direct review).

Section 440.10 does not permit claims involving trial issues that were raised, or could have been raised, on direct appeal.

People v. Matthews · filed 2003-06-17

In any event, all of these claims involve trial issues that were raised, or could have been raised, on direct appeal. Accordingly, they may not be raised under CPL 440.10 (People v Cooks, 67 NY2d 100 [1986]).

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

People v. Minter · filed 2003-06-13(2)(b)

The court should have denied defendant’s motion pursuant to CPL 440.10 (2) (b) because defendant’s direct appeal from the judgment of conviction was pending at the time of the motion and there were sufficient facts in the record to permit adequate review of defendant’s contention on the direct appeal.

CPL 440.10 (2) (c) requires summary denial of a plea voluntariness challenge when the record permitted review on direct appeal and the defendant unjustifiably failed to raise the issue there.

People v. Swansbrough · filed 2003-07-03(2)(c)

As we recognized in our recent decision in People v Lindsey (302 AD2d 128 [2003]), CPL 440.10 (2) (c) mandates summary denial of a postconviction challenge to the voluntariness of a plea based on a failure to advise of postrelease supervision where sufficient facts appear on the record to permit adequate review on direct appeal and the defendant unjustifiably fails to take or perfect an appeal actually raising that issue (id. at 130; see People v Cooks, 67 NY2d 100, 104 [1986]).

Section 440.10(2)(c) precludes a motion to vacate based on an issue the defendant could have raised on direct appeal when the record was sufficient for review.

People v. Murray · filed 2003-12-24(2)(c)

Defendant’s failure to pursue the issue in an available appeal precludes consideration of the issue within the context of this CPL article 440 motion (see CPL 440.10 [2] [c]; People v Swansbrough, supra at 390; People v Lindsey, 302 AD2d 128 [2003], lv denied 100 NY2d 583 [2003]).

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 issue.

People v. Jossiah · filed 2003-12-29(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)(b) bars a motion on an issue that the record permits the defendant to raise on direct appeal.

People v. Brodus · filed 2003-07-31(2)(b)

Inasmuch as the record contained sufficient facts to permit defendant to have raised this issue on his direct appeal, a CPL 440.10 motion addressing that issue will not lie (see CPL 440.10 [2] [b]).

Section 440.10(2)(b) permits denial of a motion to vacate when sufficient facts in the record allow review of the claim on direct appeal.

People v. Prude · filed 2003-12-31(2)(b)

County Court properly denied defendant’s motion on the ground that sufficient facts appear on the record to permit review of defendant’s contention on direct appeal (see CPL 440.10 [2] [b]).

Section 440.10(2)(b) requires denial of a motion to vacate when the claim can be adequately reviewed on a pending or available direct appeal.

People v. Funches · filed 2004-02-19(2)(b)

The court properly denied, as procedurally defective (see CPL 440.10 [2] [b]), Funches’s motion to vacate the judgment on the ground of ineffective assistance of counsel.

Section 440.10 permits a claim that counsel gave improper advice about sentencing exposure to be raised by motion when the claim cannot be shown from the trial record, even if ineffective assistance was raised on appeal.

People v. Reynolds · filed 2003-10-23(2)(a)

However, an exception exists where the claim of ineffective assistance of counsel is based upon an alleged failure to provide proper advice concerning sentencing exposure.

Section 440.10(1)(h) does not allow a motion to vacate a conviction to substitute for a direct appeal when the defendant could have raised the claims on appeal but did not.

People v. Williams · filed 2004-03-01(1)(h)

A motion to vacate a judgment of conviction pursuant to CPL 440.10 (1) (h) cannot be made as a substitute for a direct appeal from the judgment when the defendant could have raised his claims on appeal, but failed to do so.

Section 440.10(2)(b) bars a motion to vacate based on claims supported by the trial record and available for review on direct appeal.

People v. Beverly · filed 2004-03-11(2)(b)

Some of defendant’s allegations were based on information in the record, which was available for review on the direct appeal and thus not a proper subject of a CPL article 440 motion (see CPL 440.10 [2] [b]).

Section 440.10(2)(b) requires denial of a motion to vacate when the trial record is sufficient to permit review of the claim on direct appeal.

People v. Hatcher · filed 2004-03-16(2)(b)

The court correctly denied defendant’s motion to vacate judgment alleging ineffective assistance of counsel. The court properly found that the trial record was sufficient to permit review of this issue on direct appeal (see CPL 440.10 [2] [b]).

Section 440.10(2)(a) precludes a motion to vacate from relitigating claims resolved on direct appeal.

People v. Feerick · filed 2004-05-04(2)(a)

The decisions by this Court (241 AD2d 126, 136-138 [1998]) and the Court of Appeals (93 NY2d 433, 452 [1999]) on defendants’ direct appeals are dispositive of their claims concerning allegedly undisclosed Rosario material, and we reject defendants’ arguments to the contrary (see People v Graves, 85 NY2d 1024, 1027 [1995]; see also CPL 440.10 [2] [a]).

Section 440.10(2)(c) requires denial of a motion to vacate when the facts supporting a claim appear in the record and the claim could have been raised on appeal.

People v. Webb · filed 2004-05-21(2)(c)

CPL 440.10 (2) (c) mandates that a court deny a motion to vacate a judgment if all the necessary facts relating to the legal issue appear "on the record" ( People v Cooks , 67 NY2d 100; People v Sadness , 300 NY 69). ... These rulings appear on the record and could have been raised on appeal. The motion to vacate the judgment based on these allegations is also denied as mandatorily barred.

Section 440.10(2)(a) bars a motion to vacate a judgment when the issues raised have already been addressed.

People v. Khan · filed 2004-06-23(2)(a)

Defendant's claims are procedurally barred pursuant to CPL 440.10(2)( a) as the issues have already been addressed.

Section 440.10(2)(c) bars a defendant who did not appeal from raising an appealable claim in a motion to vacate judgment.

People v. Tapp · filed 2004-09-23(2)(c)

Since defendant did not appeal from the judgment of conviction, he was not entitled to raise this claim by way of a motion to vacate judgment (see CPL 440.10 [2] [c]).

Section 440.10(2)(b) makes issues that fully appear on the trial record improper grounds for a motion to vacate judgment.

People v. Johnson · filed 2004-04-13(2)(b)

The motion raised issues that were not proper grounds for a CPL 440.10 motion because they fully appeared on the record (see CPL 440.10 [2] [b]), and were without merit in any ... event.

Section 440.10(2)(a) provides an adequate and independent state procedural ground when a court denies a motion to vacate based on a claim previously decided on appeal.

Pepe v. Walsh · filed 2012-05-24(2)(a)

In accord with the majority view in this Circuit, this Court finds that the County Court’s citation of CPL § 440.10(2)(a) in support of its denial of the Aney/Hobika conflict claim rested the court’s decision upon an adequate and independent state law ground, thereby precluding habeas review of that aspect of the County Court’s decision.

Section 440.10(2)(a), (b), and (c) do not require denial when the claim was omitted from the original suppression motion and the direct appeal record lacked facts sufficient to review it.

HUNTSMAN, CRAIG, PEOPLE v · filed 2012-06-08(2)(a), (b), (c)

Contrary to the People’s contention, defendant’s original suppression motion did not include this meritorious contention, nor did sufficient facts appear on the record of the appeal from the judgment to permit adequate review of this contention on the direct appeal from the judgment. Thus, denial of the CPL article 440 motion was not mandatory under CPL 440.10 (2) (a), (b) or (c).

A CPL 440.10 motion may be summarily denied when the direct appeal record contains sufficient facts to permit review.

People v. Major · filed 2012-06-28(2)(b)

The court was correct in summarily denying the CPL 440.10 motion since sufficient facts appear on the record on the direct appeal to permit our review (CPL 440.10 [2] [b]).

Section 440.10(2)(b) bars a motion based on a claim that appears in the record and was addressed on direct appeal.

People v. Vallee · filed 2012-07-19(2)(b)

To the extent that defendant’s claim that his plea was not voluntary due to ineffective assistance of counsel is based upon information in the record and, thus, addressed on his direct appeal, it was not the proper subject of a CPL 440.10 motion (see CPL 440.10 [2] [b]; People v Pecararo, 83 AD3d 1284, 1287 [2011], lv denied 17 NY3d 820 [2011]; People v Lahon, 17 AD3d 778, 780 [2005], lv denied 5 NY3d 790 [2005]).

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

People v. Bruno · filed 2012-07-19(2)(c)

Since defendant failed to raise these issues during his direct appeal, they are not the proper subject of a CPL article 440 motion (see CPL 440.10 [2] [c]; People v Stevens, 95 AD3d 1451, 1453 [2012]; People v Polanco, 52 AD3d 947, 947 [2008], lv denied 11 NY3d 793 [2008]; People v Saunders, 301 AD2d at 871).