N.Y. Crim. Proc. Law § 440.10

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

Rush v. Lempke · filed 2012-10-11(2)(c)

The petitioner’s failure to raise the claim on direct review also forecloses collateral review in state court. See Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 170 (2d Cir. 2000) (citing N.Y. Rules of Court, Court of Appeals, § 500.10(a) (McKinney 1999), and N.Y. Crim. Proc. Law § 440.10(2)(c) (McKinney 1994)).

Section 440.10 requires newly discovered evidence for relief under subdivision (1)(g) and bars review of claims that a pending direct appeal can address on a sufficient record under subdivision (2)(b).

People v. Kindred · filed 2012-11-01(1)(g), (2)(b)

Finally, County Court properly denied defendant’s pro se motion pursuant to CPL 440.10 to vacate the judgment of conviction, as he presented no “[n]ew evidence . . . discovered since the entry of a judgment” (CPL 440.10 [1] [g]), his direct appeal was pending at the time of the motion, and the record was sufficiently complete to permit appellate review of all the claims he raised (see CPL 440.10 [2] [b]; People v Trombley, 91 AD3d 1197, 1203 [2012]; People v Griffin, 115 AD2d 902, 904 [1985], lv denied 67 NY2d 884 [1986]).

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

People v. Rauf · filed 2013-11-14(2)(a), (2)(c)

The court properly denied the motion because it was based on claims that were either previously determined on the merits on the direct appeal from the judgment (see CPL 440.10 [2] [a]) or should have been raised on that appeal (see CPL 440.10 [2] [c]; People v Jackson, 266 AD2d 163 [1st Dept 1999], lv denied 94 NY2d 921 [2000]).

Section 440.10(2)(b) does not require denial of a motion raising a mixed ineffective assistance claim that depends partly on facts outside the direct appeal record.

Contant v. Sabol · filed 2013-12-06(2)(b)

Having considered the second guidepost, however, the Court concludes that the trial court’s reliance on § 440.10(2)(b) does not constitute an adequate state law ground because New York state case law suggests that application of this procedural bar was not “demanded in the specific circumstances presented.”

Section 440.10(2)(c) does not provide a way to raise a plea error clear from the face of the trial record.

People v. Tyrell · filed 2013-12-12(2)(c)

Likewise, he could not have filed a CPL 440.10 motion because the error in these cases was “clear from the face of the trial record” (People v Stewart, 16 NY3d 839, 840 [2011]; see also People v Cooks, 67 NY2d 100, 104 [1986]; CPL 440.10 [2] [c]).

Section 440.10(2)(b) does not require denial of a motion during a pending direct appeal when the appellate record is insufficient to review the claim and its facts need further development.

People v. Diallo · filed 2013-12-19(2)(b)

Moreover, defendant’s motion established that the record on his direct appeal was not sufficient to permit adequate review of the issues surrounding defendant’s right to counsel claim and that the facts surrounding this claim need to be further developed (see CPL 440.10 [2] [b]). ... As such, County Court incorrectly denied the motion based upon the pending appeal (see CPL 440.10 [2] [b]; People v Kearney, 78 AD3d 1329,1330-1331 [2010], lv denied 4 NY3d 854 [2005]; cf. People v Kindred, 100 AD3d 1038, 1041 [2012], lv denied 21 NY3d 913 [2013]; People v Griffin, 115 AD2d 902, 904 [1985], lv denied 67 NY2d 884 [1986]).

CPL 440.10(2)(c) bars a claim that could have been adequately reviewed on direct appeal when the defendant unjustifiably failed to perfect that appeal.

People v. McCrory · filed 2014-02-13(2)(c)

However, the defendant is barred from raising this claim in his motion pursuant to CPL 440.10, as sufficient facts appear on the record to have permitted adequate review of this claim upon direct appeal from the underlying judgment, but the defendant unjustifiably failed to perfect his appeal from that judgment (see CPL 440.10 [2] [c]; People v Cuadrado, 9 NY3d 362, 365 [2007]; People v Schafer, 94 AD3d 778, 779 [2012]; People v Chiu Mei Lan Kwok, 51 AD3d 814 [2008]).

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

People v. Young · filed 2014-03-06(2)(c)

Most of defendant’s arguments alleging ineffective assistance of counsel are based on information that was in the record. As these arguments could have been raised on direct appeal, they are not the proper basis for a postconviction motion (see CPL 440.10 [2] [c]; People v Lindsey, 302 AD2d 128, 130 [2003], lv denied 100 NY2d 583 [2003]).

Section 440.10(2)(c) does not bar a motion when the claim depends on facts outside the record that could not have been adequately reviewed on direct appeal.

People v. Mentor · filed 2014-04-09(2)(c)

A motion pursuant to CPL 440.10 to vacate a judgment of conviction must be denied when, although sufficient facts appear on the record to have permitted adequate review of the issue raised upon the motion, no appellate review or determination occurred owing to the defendant’s unjustifiable failure to take or perfect an appeal or to raise such issue upon an appeal actually perfected (CPL 440.10 [2] [c]).

Section 440.10(2)(a) and (c) preclude a vacatur claim based on an alleged trial error known to the defendant and available for an ineffective assistance argument on direct appeal.

People v. Leader · filed 2014-04-17(2)(a), (c)

The alleged single error now asserted to support his present claim of ineffective assistance of counsel would have been known to defendant at the time of his prior appeal a decade earlier. Thus, to the extent that defendant’s argument is based on his attorney’s failure to object when a pre-voir dire oath was not set forth at the appropriate point in the trial, as is allegedly reflected by the four pages of transcript that defendant annexed to his affidavit, such argument could have been raised as part of the ineffective assistance of counsel argument ... already made on his direct appeal (see CPL 440.10 [2] [a], [c]).

Section 440.10(2)(a) bars a motion to vacate a judgment when the claim was previously determined on direct appeal.

People v. Beckingham · filed 2014-04-24(2)(a)

Simply stated, none of the evidence relied upon in support of his claim of actual innocence is new, and his contention that the jury improperly accepted the People’s explanation for the cause of death has already been reviewed and determined on the direct appeal (see CPL 440.10 [2] [a]; People v Carter, 105 AD3d 1149, 1149-1150 [2013]; People v Strawbridge, 76 AD3d 115, 118-119 [2010], lv denied 15 NY3d 895 [2010]; People v Thompson, 48 AD3d 883, 884-885 [2008], lv denied 10 NY3d 965 [2008]; compare People v Hamilton, 115 AD3d 12, 17 [2014] [where key witnesses were either not available or prevented from testifying at trial]).

Section 440.10(2)(c) bars a motion to vacate based on claims that the trial record permitted the court to review on direct appeal.

People v. Benloss · filed 2014-05-28(2)(c)

The defendant’s remaining contentions were either previously determined on the merits on the direct appeal from the judgment of conviction (see CPL 440.10 [2] [c]; see also People v Benloss, 60 AD3d 686 [2009]), or sufficiently appeared on the record “to have permitted” adequate review thereof on the direct appeal (CPL 440.10 [2] [c]; see People v Cooks, 61 NY2d 100, 103 [1986]; People v Kandekore, 300 AD2d 318, 319 [2002]). Accordingly, the Supreme Court properly denied those branches of the defendant’s motion (see CPL 440.10 [2]; People v Kandekore, 300 AD2d at 319).

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

People v. Lovejoy · filed 2014-06-11(2)(c)

The issue raised by defendant in this CPL 440 motion could have been raised on direct appeal. However, defendant did not file an appeal nor has he offered any explanation for his failure to do so. Accordingly, defendant’s motion to vacate his judgment of conviction is barred by CPL 440.10 (2) (c).

Section 440.10(2)(b) supports summary denial of a motion to vacate when a pending direct appeal permits review of the claim from the record and the motion presents no new evidence.

PeoplevMorales · filed 2014-07-10(2)(b)

Finally, County Court's summary denial of defendant's motion to vacate the judgment of conviction pursuant to CPL 440.10 was proper, as the record on defendant's direct appeal was sufficient to review his contention that he received the ineffective assistance of counsel with respect to statutory immunity, and defendant presented no new evidence on his motion (see CPL 440.10 [2] [b]; People v Kindred, 100 AD3d 1038, 1041 [2012], lv denied 21 NY3d 913 [2013]; People v Trombley, 91 AD3d 1197, 1203 [2012], lv denied 21 NY3d 914 [2013]).

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

Jackson v. Conway · filed 2014-08-14(2)(c)

Jackson has no further state avenues in which to press this issue because he has completed his direct appeal and the nature of the claim is apparent from the face of the record, meaning that he would be barred from raising it in a motion to vacate the judgment. See N.Y. Crim. Proc. Law § 440.10(2)(c) (stating that the court “must deny” a § 440.10 motion when sufficient facts appear on the record to permit appellate review of the claim and the defendant unjustifiably failed to raise that issue on direct appeal); see also Sweet v. Bennett, 353 F.3d 135, 140 (2d Cir. 2003) (applying section 440.10(2)(c) to claims raised for the first time in federal habeas petition).

Section 440.10 does not permit a motion to vacate based on a plea allocution deficiency apparent from the record.

People v. Simpson · filed 2014-08-14(2)(c)

A claim of a deficiency in a plea allocution is record-based and therefore may not be raised by way of a CPL 440.10 motion (see CPL 440.10 [2] [c]).

CPL 440.10 is the appropriate vehicle for an ineffective assistance of counsel claim based on matters outside the record.

People v. Fisher · filed 2014-10-22

The appropriate vehicle to allege ineffective assistance of counsel based on matter dehors the record is pursuant to CPL 440.10 (see People v Folger, 110 AD3d at 736; People v Rohlehr, 87 AD3d at 604).

Section 440.10(2)(c) bars a motion to vacate based on a claim that the record permitted adequate review on direct appeal.

People v. Hayes · filed 2014-08-20(2)(c)

Accordingly, under the circumstances presented here, the defendant is barred from raising that contention on a motion to vacate the judgment (see CPL 440.10 [2] [c]; see also People v Cooks, 67 NY2d 100, 104 [1986]; People v Chiu Mei Lan Kwok, 51 AD3d 814, 815 [2008]).

Section 440.10(2)(b) requires denial of a claim when an appeal is pending and the record contains sufficient facts to permit review on that appeal.

ROSSBOROUGH, RONALD D., PEOPLE v · filed 2014-11-14(2)(b)

With respect to the contention raised in defendant’s pro se supplemental brief that his right to counsel was violated, we conclude that the court properly denied the motion without a hearing inasmuch as defendant’s appeal was pending and “sufficient facts appear[ed] on the record with respect to [that contention] to permit adequate review thereof upon such . . . appeal” (CPL 440.10 [2] [b]; see People v Cooks, 67 NY2d 100, 104).

Section 440.10(2)(c) does not bar a right-to-counsel claim when interference with counsel impaired the defendant’s ability to seek appellate relief.

The People v. Grubstein · filed 2014-11-18(2)(c)

Section 440.10 (2) (c) itself appears to recognize this problem, by making its bar applicable only where the failure to appeal, or the failure to raise a particular argument, is "unjustifiable." The statute thus implies that such failures are sometimes justifiable, and an interference with the right to counsel that impaired the defendant's ability to pursue appellate relief should normally be a sufficient justification.

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

Pham v. Kirkpatrick · filed 2016-09-21(2)(c)

Pham’s remaining claims are also procedurally defaulted because there is no remaining avenue by which he can properly exhaust them in state court. ... The facts supporting Pham’s remaining claims were apparent on the record and should have been raised on direct appeal.

Section 440.10(2)(b) bars a motion to vacate based on claims that could be adequately reviewed on direct appeal from facts in the record.

People v. Dickson-Eason · filed 2016-10-06(2)(b)

Most of the issues raised on his motion concern claims that former counsel provided ineffective assistance, which were raised (and rejected) or could have been raised on his direct appeal, as "sufficient facts appear on the record" to permit adequate review thereof and, thus, these claims are not the proper subject of a motion ... pursuant to CPL article 440 (CPL 440.10 [2] [b]; see People v Cuadrado, 9 NY3d 362, 364-365 [2007]; People v Anderson, 104 AD3d 968, 972 [2013], lv denied 21 NY3d 1016 [2013]).

Section 440.10(2)(a) and (c) require denial of claims that were or could have been raised on direct appeal.

MCCULLOUGH, TUREMAIL, PEOPLE v · filed 2016-11-10(2)(a), (2)(c)

The court properly concluded that it was required to deny the motion with respect to the majority of defendant’s claims of ineffective assistance of counsel because they could have been, or were, raised on his direct appeal from the judgment of conviction (see CPL 440.10 [2] [a], [c]; People v Mastowski, 63 AD3d 1589, 1590, lv denied 12 NY3d 927, reconsideration denied 13 NY3d 837; People v Hall, 28 AD3d 678, 678, lv denied 7 NY3d 867).

Section 440.10(2)(c) forecloses review in a motion to vacate of claims capable of being raised on direct appeal.

People v. Oddy · filed 2016-11-17(2)(c)

The balance of defendant's claims raised in his CPL 440.10 motion are claims that were capable of being raised in his direct appeal, which we have considered, and are therefore foreclosed for review in a CPL 440.10 motion (see CPL 440.10 [2] [c]; People v Lewis, 138 AD3d 1346, 1348 n 3 [2016]; People v Rebelo, 137 AD3d 1315, 1316 [2016], lv denied 28 NY3d 936 [2016]).

Section 440.10(2)(c) prevents a defendant from using a motion to vacate to raise a claim omitted from direct appeal when the record contained enough facts for appellate review.

People v. Darrell · filed 2016-12-22(2)(c)

Defendant's assertion that counsel was remiss in not requesting a Mapp/Dunaway hearing to challenge the legality of the search and the identity of the confiscated contraband was not raised on direct appeal, although sufficient facts appear on the record to have permitted such review (see CPL 440.10 [2] [c]); as such, this issue is also not the proper ... subject of a postverdict motion to vacate.

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

People v. Herbert · filed 2017-02-23(2)(b)

Inasmuch as defendant's claim that he was deprived of his right to testify before the grand jury 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 Jones, 101 AD3d 1482, 1483 [2012], lv denied 21 NY3d 1017 [2013]; People v Chiacchiarini, 91 AD3d 1118, 1119 [2012], lv denied 19 NY3d 863 [2012]; People v Lagas, 49 AD3d 1025, 1026 [2008], lvs denied 10 NY3d 859, 866 [2008]).

Section 440.10(2)(c) bars a motion to vacate based on matters in the direct appeal record that should have been raised on direct appeal.

People v. Campbell · filed 2017-03-08(2)(c)

The defendant’s claim that the trial court improperly granted the People’s peremptory challenge to a nonwhite juror is based on matter in the record of the direct appeal and should have been raised on direct appeal (see CPL 440.10 [2] [c]).

Section 440.10 does not provide review of claims based on the criminal record that could have been raised on direct appeal.

People v. Monterio · filed 2017-04-06(2)(c)

We decline to address the other grounds for defendant’s CPL 440.10 motion, as they concern matters that were part of the record in the criminal action, and could have been raised on direct appeal (see People v Oddy, 144 AD3d 1322, 1324 [2016]; People v Dickson-Eason, 143 AD3d 1013, 1015 [2016], lv denied 28 NY3d 1123 [2016]).

Section 440.10 does not provide relief for a claim based on information apparent on the record that should have been raised on direct appeal.

People v. DePerno · filed 2017-03-30

As information regarding the maximum sentencing exposure appears on the face of the record and no additional background facts are necessary to develop further information, the issue should have been raised on direct appeal and not by way of a CPL 440.10 motion (see People v Satterfield, 66 NY2d 796, 799 [1985]; People v Hillriegel, 78 AD3d 1381, 1382 [2010]).

Section 440.10 does not permit a motion to vacate based on a claim apparent on the face of the record, even if the claim may require additional fact-finding.

People v. Young · filed 2017-05-04

Defendant’s claim that the plea court (Arlene D. Goldberg, J.) gave misleading information about the immigration consequences of the plea (see People v Peque, 22 NY3d 168, 193-197 [2013], cert denied 574 US —, 135 S Ct 90 [2014]) is based on the face of the record and therefore is not cognizable on a CPL article 440 motion, notwithstanding that a Peque claim may lead to additional fact-finding (see People v Llibre, 125 AD3d 422, 423 [1st Dept 2015], lv denied 26 NY3d 969 [2015]).

Section 440.10(2)(b) and (c) bar relief on a claim that the defendant could have raised on direct appeal but did not.

People v. VanHooser · filed 2017-06-09(2)(b), (c)

In any event, it is apparent from the record that the court did not afford defendant the opportunity to withdraw his plea or to accept the legal resentence, and defendant failed to raise the contention, now raised here, on his direct appeal from the resentence (People v VanHooser [appeal No. 1], 126 AD3d 1531, 1531 [2015]). Thus, the court properly declined to grant the motion on that basis (see CPL 440.10 [2] [b], [c]; People v Cuadrado, 9 NY3d 362, 364-365 [2007]; People v Lee, 59 AD3d 996, 997 [2009], lv denied 13 NY3d 746 [2009]).

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. McKenzie · filed 2017-06-28(2)(c)

The defendant's contention could have been raised on direct appeal from the judgment, and, accordingly, the court was required to deny the motion ( see CPL 440.10[2][c]; People v Cuadrado , 9 NY3d 362; People v Smith , 36 AD3d 633, 633-634).

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

People v. Ortega · filed 2017-08-08(2)(c)

First, a defendant’s motion to vacate a judgment must be denied if sufficient facts appear on the record to support his claim and he unjustifiably neglects to raise that claim on an appeal actually perfected by him. (CPL 440.10 [2] [c].) That is what occurred here.

Section 440.10 does not permit a motion to vacate based on a claim apparent from the plea record.

People v. Olecski · filed 2017-09-05(1)(h)

In any event, the defendant’s “claims relating to the court’s failure to advise [her] of the [license revocation] consequences of [her] plea . . . [are] record-based and therefore may not be raised by way of a CPL 440.10 motion.”

CPL 440.10 motions are not the proper vehicle for record-based issues.

People v. Perez · filed 2017-10-03

Aside from the fact that this record-based issue is not the proper subject of a CPL 440.10 motion, we see no reason to depart from our prior determination.

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

People v. Taylor · filed 2017-11-02(2)(c)

Because such claim constitutes a single, unified claim that must be assessed in totality and is dependent, in part, on matters outside 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]).

Section 440.10 relief is foreclosed when a claim was apparent from the trial record and could have been raised on direct appeal.

People v. Coleman · filed 2017-11-02

As the officer’s inaccurate testimony was clearly placed on the record before County Court and was apparent during the trial, the issue “could have been raised upon direct appeal, thus foreclosing CPL article 440 relief” (People v Hillriegel, 78 AD3d 1381, 1382 [2010]; see People v Angelakos, 70 NY2d 670, 672-673 [1987]; People v Monteiro, 149 AD3d 1155, 1156 [2017]; People v DePerno, 148 AD3d 1463, 1464 [2017], lv denied 29 NY3d 1030 [2017]).

Section 440.10(2)(c) requires denial when a defendant unjustifiably failed to raise on direct appeal a claim the record permitted the appellate court to review adequately.

People v. Pace · filed 2017-11-17(2)(c)

Inasmuch as the record on the direct appeal lacked the lower court paperwork, the record on direct appeal was insufficient to determine whether a motion to dismiss the felony counts under CPL 40.20, if made, would have been successful. We thus conclude that defendant did not “unjustifiabl[y]” fail to raise the contention on direct appeal and that the court erred in summarily dismissing the CPL 440.10 motion on that ground (CPL 440.10 [2] [c]).

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.

People v. Matthew NN. · filed 2017-12-21(2)(c)

Turning to defendant’s motion to set aside his sentence pursuant to CPL 440.20, County Court erred in denying it based upon the procedural bar set forth in CPL 440.10 (2) (c), which “applies only to motions made pursuant to section 440.10” (People v McCants, 15 AD3d 892, 893 [2005]; see People v Povoski, 111 AD3d 1350, 1351 [2013]).

Section 440.10(2)(a) bars a defendant from raising a claim anew in a motion to vacate after raising it on direct appeal.

People v. Miller · filed 2018-01-17(2)(a)

Therefore, the defendant is barred from raising this contention anew, "dressed in different procedural garments" ( People ex rel. Baumgart v Martin, 9 NY2d 351, 354; see CPL 440.10[2][a]).

Section 440.10(2)(c) precludes relief on a claim that the record permitted the defendant to raise on direct appeal.

People v. Miller · filed 2018-03-01(2)(c)

Inasmuch as the record permitted adequate review of this issue, it should have been raised on direct appeal, precluding relief under CPL article 440 ( see CPL 440.10 [2] [c]; People v Monteiro , 149 AD3d 1155, 1156 [2017]; People v DePerno , 148 AD3d 1463, 1465 [2017], lv denied 29 NY3d 1030 [2017]).

Section 440.10(2)(c) bars a claim that could have been raised on direct appeal only when the facts supporting it are apparent from the trial record.

Momplaisir v. Capra · filed 2018-04-12(2)(c)

The state court barred each of these claims under CPL § 440.10(2)(c); the key requirement for application of the provision is that the facts supporting the claim must be apparent from the trial record, making that claim capable of review on direct appeal. That requirement was not met in this case for these three claims.

Section 440.10(2)(b) makes a motion to vacate judgment an improper vehicle for arguments based on matters in the record.

People v. Hunter · filed 2019-09-12(2)(b)

Defendant's remaining arguments involve matters in the record and, as a result, were not properly raised in a CPL article 440 motion ( see CPL 440.10 [2] [b]; People v Lamb , 162 AD3d 1395, 1397 [2018], lv denied 32 NY3d 1112 [2018]).

CPL 440.10 does not permit a defendant to raise a record-based challenge to the adequacy of a plea colloquy.

People v. Moultrie · filed 2019-09-24

However, counsel could not have raised such a record-based claim in a CPL 440.10 motion ( see People v Tyrell , 22 NY3d 359, 364 [2012]; People v Cooks , 67 NY2d 100, 104 [1986]).

Section 440.10 generally does not permit a motion based on a trial court's plea advice when the claim is clear from the record.

People v. Hall (Michael) · filed 2019-10-03(2)(c)

While a claim relating to a trial court's inadequate or erroneous advice concerning the immigration consequences of a plea would generally be clear from the face of the record and therefore not properly the subject of a CPL 440.10 motion ( see CPL 440.10 [2] [c]; Llibre , 125 AD3d 422; People v Simpson , 120 AD3d 412 [2014]), here, there are no transcripts from defendant's plea proceeding since they were destroyed by the City Court after they were more than 10 years old.

Section 440.10 provides the motion procedure for an ineffective-assistance claim based on matters outside the appellate record.

People v. Thomas · filed 2019-10-04

To the extent that defendant's contention involves matters outside the record on appeal, it must be raised by way of a motion pursuant to CPL 440.10 ( see People v Carey , 162 AD3d 1476, 1478 [4th Dept 2018], lv denied 32 NY3d 936 [2018]).

Section 440.10 is the proper vehicle for an ineffective-assistance claim that depends on facts outside the direct-appeal record.

People v. Fermin · filed 2019-10-17

Defendant's argument that her counsel provided conflicted, ineffective representation because, at a single court appearance at an early stage of the proceedings, he jointly represented her and another defendant involved in the case is not reviewable on direct appeal because this claim involves factual matters outside the record concerning the conduct of the defense that should have been raised in a CPL 440.10 motion ( see People v Peyton , 27 AD3d 402 [1st Dept 2006], lv denied 7 NY3d 793 [2006]).

Section 440.10 (2) (b) does not bar a motion when no direct appeal was filed, and (2) (c) does not bar a claim that arose after the deadline for a direct appeal.

People v. Valerio · filed 2019-10-04(2)(b), (2)(c)

We note at the outset that, contrary to the People's implicit contention, defendant's motion is not barred by CPL 440.10 (2) (c) inasmuch as the relevant ground for relief did not arise until several years after the deadline to file a direct appeal from the judgment had expired. Further, contrary to the court's determination, defendant's motion is not barred by CPL 440.10 (2) (b) inasmuch as he never filed a direct appeal from the judgment.

Section 440.10(2)(c) bars collateral review of a claim the defendant could have raised on direct appeal but did not.

Brown v. Lee · filed 2019-10-10(2)(c)

Moreover, the claim is now procedurally barred by state law because NYCPL § 440.10(2)(c) clarifies that a collateral attack of a conviction fails where the defendant failed to “raise such ground or issue” on direct appeal.

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

Chestnut v. LaManna · filed 2019-10-21(2)(c)

New York law bars review of a claim that could have been raised on direct review, including record-based claims. N.Y. Crim. Proc. Law § 440.10(2)(c) (McKinney 2019). Here, each basis for Chestnut’s ineffective assistance of trial counsel claim is entirely reviewable on the trial record.

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

McPherson v. Keyser · filed 2019-11-15(2)(c)

Nor is collateral review available to him as he could have raised the issues on direct appeal.

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

Davis v. Royce · filed 2019-12-18(2)(c)

Davis is no longer able to return to state court to exhaust the claims because he has already completed the one appeal to which he is entitled, Grey, 933 F.2d at 120-21, and his record-based claims cannot now be raised in a motion to vacate, see New York Criminal Procedure Law (“CPL”) § 440.10(2)(c).

Section 440.10(2)(b) requires denial of a motion when sufficient record facts permit review of the claim on a pending direct appeal.

People v. Lundy · filed 2019-12-20(2)(b)

Furthermore, contrary to defendant's contention in appeal No. 2, the court properly denied defendant's motion pursuant to CPL 440.10 insofar as the motion was based on those allegations of ineffective assistance because there were sufficient record facts to review them on direct appeal ( see CPL 440.10 [2] [b]).

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

Hernandez v. D.M. Unger · filed 2019-12-27(2)(c)

Because claims of trial unfairness and miscarriage of justice are based on the trial record, under New York law they should have been raised on direct appeal, NY CPL §440.10(2)(c), so in the parlance of habeas jurisprudence the Ground One and Ground Two claims are deemed exhausted but procedurally barred because Hernandez can no longer return to state court to pursue them.

Section 440.10(2) bars record-based legal-sufficiency claims from a motion to vacate judgment.

Haywood v. Griffin · filed 2019-12-27(2)

As an initial matter, Petitioner’s claims that Counts One, Two, Seven, and Eight are not supported by the “legal sufficiency of the evidence,” (Docket No. 107), concern matters that are record-based, and are thus procedurally barred from being raised on a CPL § 440.10 motion.

Section 440.10(2)(c) does not procedurally bar a claim that counsel failed to investigate the circumstances of a defendant's statement to police.

People v. Woodard · filed 2020-01-31(2)(c)

Preliminarily, we agree with defendant that his ineffective assistance of counsel claim is not procedurally barred by CPL 440.10 (2) (c).

Section 440.10(2)(b) bars a motion to vacate when the record permits adequate review of the claims on direct appeal.

People v. Bhuiyan · filed 2020-03-11(2)(b)

We agree with the Supreme Court's determination that sufficient facts appeared on the record, including the submissions made by the defendant in support of his motion to withdraw his plea, to permit adequate review of the issues raised in the defendant's CPL 440.10 motion upon his direct appeal, and thus that the defendant was procedurally barred from raising his claims under CPL 440.10(1)(h) ( see CPL 440.10[2][b]; cf. People v Hernandez , 125 AD3d 885 , 887).

Section 440.10(2)(c) bars review of a claim that could have been raised on direct appeal when the trial record contained sufficient facts to permit review.

People v. Scott · filed 2020-03-13(2)(c)

Finally, we note that defendant's contention regarding defense counsel's failure to file and serve a notice of alibi is not properly before us inasmuch as sufficient facts appear on the record of the proceedings underlying the judgment to have permitted review of the issue had defendant raised it on the prior appeal ( see CPL 440.10 [2] [c]).

Section 440.10(2)(c) bars a motion to vacate based on claims the defendant could have raised on direct appeal but failed to raise.

Neree v. Capra · filed 2020-05-01(2)(c)

Were he now to raise them in New York State court, they would be denied under N.Y. Crim. Proc. Law § 440.10[2][c] as he failed to raise them in his direct appeal.

Section 440.10 does not provide a motion to address an error clear from the face of the record.

People v. Mckenzie · filed 2020-03-20

Additionally, no preservation is required here inasmuch as "defendant could not have brought a CPL 220.60 (3) plea withdrawal motion . . . because the [purported] plea and [*2]sentence occurred during the same proceeding, [and] he could not have filed a CPL 440.10 motion because the error . . . was clear from the face of the . . . record' " ( id. ; see People v Conceicao , 26 NY3d 375, 382 [2015]).

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

Harris v. Lamanna · filed 2020-03-23(2)(c)

Because Section 440.10(2)(c) of New York’s Criminal Procedure Law prohibits relief on a claim that could have been raised on appeal, the petitioner’s ineffective assistance of counsel claim is procedurally barred.

Section 440.10(2)(b) permits rejection of a postconviction claim that could have been preserved at trial, even when later precedent strengthens the claim.

People v. Crum · filed 2020-06-11(2)(b)

At trial, defendant did not preserve any claim relating to cell site location information obtained without a warrant, and the motion court providently exercised its discretion under CPL 440.10(2)(b) when it rejected defendant's attempt to raise this issue by way of a postconviction motion .

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

People v. Graham · filed 2020-07-16(2)(c)

Initially, as defendant could have raised on his direct appeal his arguments regarding alleged Rosario or Brady violations and alleged ineffective assistance due to counsel's failure to move to suppress the gun, those arguments are not proper bases for his CPL 440.10 motion ( see CPL 440.10 [2] [c]).

Section 440.10(2) requires denial when a claim was decided on direct appeal or could have been raised there from the record, but it does not bar a different claim based on matters outside that record.

People v. Redmon · filed 2020-06-17(2)(a), (2)(c)

Contrary to the Supreme Court's conclusion, these contentions were not subject to a mandatory procedural bar. CPL 440.10(2) requires denial of a motion to vacate a judgment, inter alia, when the ground raised on the motion was previously determined on the merits upon a direct appeal or where sufficient facts appeared on the record to have permitted review of the issue on direct appeal but no such review occurred due to the defendant's unjustifiable failure to raise the issue on appeal ( see CPL 440.10[2][a], [c]). Although, on direct appeal, this Court addressed a contention raised by the defendant regarding a potential violation of People v Rosario (9 NY2d 286; see People v Redmon , 81 AD3d 752, 753), the defendant's current contentions involve an alleged Brady violation. Moreover, the defendant's current contentions are based on matters dehors the record on direct appeal and, thus, were not, and could not have been, reviewed on direct appeal.

Section 440.10(2)(a) does not bar a motion when the issue was not previously determined on the merits on appeal, even if the defendant raised it in later reargument, leave-to-appeal, or federal habeas proceedings.

People v. Illis · filed 2020-06-24(2)(a)

A court must deny a motion to vacate a judgment pursuant to CPL 440.10(2)(a) if "[t]he 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." Here, the Supreme Court improperly determined that the subject motion was procedurally barred by CPL 440.10(2)(a). The court should not have relied on the fact that the defendant had claimed the subject change in law in his motion for leave to reargue his direct appeal, upon seeking leave to appeal to the Court of Appeals, and in petitioning the federal court for a writ of habeas corpus.

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

Persaud v. Connelly · filed 2020-06-25(2)(c)

In addition, three of the eight bases upon which Petitioner’s instant ineffective assistance of counsel claim rest—failure to cross-examine the Complainant about Petitioner’s phone records, failure to cross-examine the Complainant about inconsistencies between her trial testimony and her Grand Jury testimony, and failure to recall witnesses to impeach the Complainant—involve matters that appear on the record, thereby precluding Petitioner from raising those matters on a subsequent motion to vacate.

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

Katehis v. Capra · filed 2020-07-20(2)(c)

Nor can he now, as § 440.10 bars him from raising a claim, such as this, that he failed to raise on direct appeal, N.Y. Crim. Proc. Law § 440.10(2)(c), and he provides no showing of cause, prejudice, or actual innocence.

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

People v. Dickson (Christopher) · filed 2020-08-27(2)(c)

Thus, defendant's failure to take such an appeal remains unjustified and the court's order violated the clear proscription of CPL 440.10 (2) (c) against addressing the merits of defendant's motion.

Section 440.10(2)(b) does not bar a motion when the trial record cannot show whether counsel's alleged deficiencies reflected legitimate trial strategy.

People v. McCray · filed 2020-10-29(2)(b)

Defendant's motion, alleging ineffective assistance of counsel in various respects, should not have been denied on the ground that the trial record is sufficient to permit appellate review (CPL 440.10[2][b]). The trial record does not establish whether counsel's alleged deficiencies in handling suppression and trial issues were based on legitimate trial strategy.

CPL 440.10 does not provide a motion to vacate a judgment for an alleged error clear from the face of the trial record.

People v. Carl · filed 2020-11-05

Nor could he have moved to vacate the judgment pursuant to CPL 440.10 because the alleged error was "clear from the face of the trial record" ( People v Tyrell , 22 NY3d at 364 [internal quotation marks and citations omitted]). Accordingly, defendant's claim is reviewable.

Section 440.10(2)(c) bars collateral review of a claim that could have been raised on direct appeal but was not.

Khan v. Capra · filed 2020-11-10(2)(c)

Thus, due to petitioner’s failure to raise his claim on direct appeal, it “cannot be raised in a collateral attack pursuant to CPL § 440.10.”

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

Coleman v. Chappius · filed 2020-11-19(2)(c)

Nor can Petitioner seek collateral review by bringing a fifth 440 motion, as his Wade hearing claim is a matter of record that could have been raised on direct appeal and therefore cannot be brought in a motion for post-conviction relief. ... While New York state law provides for collateral review of a conviction under New York Criminal Procedure Law § 440.10, such review is not available if the claim could have been raised on direct review.

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

People v. Spradlin · filed 2020-11-25(2)(b)

Such a motion must be denied 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[s] or issue[s] raised upon the motion to permit adequate review thereof upon such an appeal" (CPL 440.10 [2] [b]; see People v Grays , 162 AD3d 1224, 1228 [2018], lv denied 32 NY3d 1111 [2018]).

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

Beasley v. Joseph · filed 2021-01-19(2)(c)

Such claims, which concern evidentiary rulings by the trial court on the record, are also now procedurally barred under New York law since they could have been raised in Petitioner’s direct appeal. It would therefore be futile for Petitioner to attempt to raise them in a new § 440.10 motion.

Section 440.10(2)(b) does not bar a motion raising a claim that depends partly on matters outside the record of a pending appeal.

People v. Drayton · filed 2020-12-24(2)(b)

As such, the court mistakenly concluded that CPL 440.10 (2) (b) prohibited it from examining defendant's CPL 440.10 motion to the extent that defendant advanced an ineffective assistance of counsel claim.

Section 440.10(2)(b) bars a motion to vacate based on a plea-voluntariness claim that can be raised on a pending direct appeal.

People v. Vittengl · filed 2022-03-17(2)(b)

With respect to defendant's CPL 440.10 motion, defendant's challenge to the voluntariness of his plea could have been — and indeed was — raised in the context of his direct appeal and, as such, is not properly the subject of a CPL article 440 motion ( see CPL 440.10 [2] [b]; see generally People v Spradlin , 192 AD3d 1270, 1273 [2021], lv denied 37 NY3d 960 [2021]).

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

Brooks v. Sticht · filed 2022-04-21(2)(c)

Second, if Brooks raised Grounds Five, Six, and Seven in a motion to vacate pursuant to C.P.L. § 440.10, the trial court would be required to deny it pursuant to C.P.L. § 440.10(2)(c) because all three claims are both apparent on the trial record and could have been raised on appeal.

Section 440.10(2)(c) bars a claim based on facts apparent from the plea record when the defendant fails to justify not raising it on direct appeal.

People v. Samaroo · filed 2022-05-11(2)(c)

The facts relevant to that claim appear on the face of the record of the plea proceeding and were therefore subject to review on direct appeal, and the defendant failed to establish that his failure to take an appeal from the judgment was justifiable ( see CPL 440.10[2][c]; People v Terrero , 198 AD3d 930, 931; People v Malik , 166 AD3d at 653; People v Zhagnay , 142 AD3d 1029, 1030).

Section 440.10(2)(b) bars a motion to vacate based on claims that can be determined from the record and reviewed on a pending direct appeal.

People v. Gillespie · filed 2022-05-19(2)(b)

His arguments regarding alleged defects in the form of the indictment and the alleged failure to file the indictment with the Albany County Clerk cannot be advanced in a CPL article 440 motion because they can be determined on the record and were reviewable on direct appeal ( see CPL 440.10 [2] [b]; People v Simpson , 196 AD3d 996, 998 [2021], lv denied 37 NY3d 1029 [2021]; People v Durham , 195 AD3d 1318, 1321 [2021], lv denied 37 NY3d 1160 [2022]).

Section 440.10(2)(c) requires denial of a motion to vacate based on a record-based claim that should have been raised on direct appeal.

Love v. Martuscello · filed 2022-06-10(2)(c)

If Love raised Ground Two in a motion to vacate the judgment pursuant to C.P.L. § 440.10, the trial court would be required to deny it because it is a record-based claim that should have been raised on direct appeal. Sweet v. Bennett, 353 F.3d 135, 139 (2d Cir. 2003) (citing N.Y. Crim. Proc. Law § 440.10(2)(c)).

Section 440.10(2)(c) requires denial of a motion to vacate when a defendant unjustifiably failed to raise on direct appeal a claim that could have been raised there.

Chander v. People of the State of New York · filed 2022-08-16(2)(c)

And he cannot raise the claims in a Section 440.10 proceeding absent cause for his default (which he has not shown).

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

People v. Ramos · filed 2022-08-17(2)(c)

Here, the County Court properly denied the defendant's motion pursuant to CPL 440.10 [*2]and 440.20 to vacate the judgment of conviction and to set aside the sentence as procedurally barred, since the claims raised on that motion appeared on the face of the record, and thus, were subject to review on direct appeal ( see id. § 440.10[2][c]; People v Bhuiyan , 181 AD3d 699, 701).

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

Ocasio v. Noeth · filed 2022-09-02(2)(c)

Second, he cannot raise the legal insufficiency claim in a collateral motion to vacate under C.P.L. § 440.10 because the claim was apparent on the trial record and could have been raised on direct appeal. Therefore, the state court would be required to deny it pursuant to 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 but were not.

Brims v. Collado · filed 2022-10-11(2)(c)

Based on its review of the record, the Court agrees with Judge Davison that Petitioner’s claims should be procedurally barred. The denial of Petitioner’s numerous requests for rehearing was not exceptional, given that the majority of Petitioner’s claims could not form the basis for a motion to vacate judgment.

Section 440.10(2)(c) bars a motion to vacate judgment based on a record-based claim that could have been raised on direct appeal but was not.

Rivera v. Kaplan · filed 2022-08-19(2)(c)

The Report is correct, however, that this claim is procedurally barred under § 440.10(2)(c) because, as the § 440 court concluded, it was record-based and could have been, but was not, raised on Rivera’s direct appeal.

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

Pellis v. Superintendent, Willard Drug Treatment Facility · filed 2022-08-22(2)(c)

Second, he cannot raise the legal insufficiency claim in a collateral motion to vacate under C.P.L. § 440.10 because the claim was apparent on the trial record and could have been raised on direct appeal. Therefore, the state court would be required to deny it pursuant to N.Y. Crim. Proc. Law § 440.10(2)(c).

Section 440.10(2)(a) requires denial when the same ground or issue was decided on the merits on appeal; it does not bar a different claim supported by new evidence.

Spencer v. Capra · filed 2022-09-15(2)(a)

We thus conclude that the Section 440.10 Court applied New York Criminal Procedure Law § 440.10(2)(a) exorbitantly in dismissing Spencer’s motion.

Section 440.10(2)(b) requires denial of a motion to vacate based on a record-based claim that can be reviewed on a pending direct appeal; that denial can bar federal habeas review.

Wagoner v. James · filed 2022-12-09(2)(b)

The County Court explicitly rejected Wagoner’s record-based speedy-trial claim because that claim should have been, but was not, raised on direct appeal. The court’s order explicitly cited § 440.10(2)(b). This claim is therefore procedurally defaulted, and Wagoner has not shown cause for the default or actual prejudice as a result.

Section 440.10 bars claims based on facts that appear, or could have been made to appear, on the record.

People v. Rodriguez · filed 2022-12-15(2)(c), (3)(a)

In addition to ineffective assistance of counsel, defendant makes other claims, which we find to be procedurally barred because they are based on facts that appear, or could have been made to appear, on the record ( see CPL 440.10[2][c], [3][a]).

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

Viruet v. Callado · filed 2023-02-13(2)(c)

These claims are also procedurally barred, meaning Viruet may not now return to state court to seek collateral review.

Section 440.10(2)(c) does not require denial when the defendant's failure to raise an issue on direct appeal was justified because the decision supporting it came after the appeal was perfected.

People v. Rice · filed 2023-03-09(2)(c)

Under the unique circumstances of this case, where the case defendant relies upon — Hodgdon — had not yet been decided at the time that her direct appeal was perfected, we find that her failure to challenge whether the Justice Center had permission to prosecute her and whether the District Attorney maintained responsibility of the prosecution was justified ( see People v Illis , 184 AD3d at 862; People v Hernandez , 167 AD3d at 939). Therefore, County Court abused its discretion in concluding that it was "bound" to deny defendant's motion under CPL 440.10 (2) (c), without a hearing, on the ground that defendant unjustifiably [*3]failed to raise the Hodgdon defense on direct appeal.

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

Ruiz-Solano v. Russell · filed 2023-04-26(2)(c)

However, Petitioner’s failure to raise a speedy trial claim during her first appeal results in a default because New York law allows a defendant only one direct appeal. See Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (holding that New York procedural rules “plainly bar” petitioner from raising claims because he did not raise them when he “made the one request for leave to appeal to which he is entitled”); N.Y. Crim. Proc. Law § 440.10(2)(c) (barring review if claim could have been raised on direct review).

Section 440.10(2)(c) bars a collateral challenge to a conviction when the record permitted adequate review of the claim on direct appeal.

Cross v. McCarthy · filed 2023-05-03(2)(c)

Moreover, Petitioner may not collaterally attack his conviction on this basis under New York law because the record would permit adequate review of this claim on direct appeal. See N.Y. Crim. Proc. Law § 440.10(2)(c).

Section 440.10(2)(a) and (c) require denial of a motion to vacate when an issue was decided on direct appeal or was unjustifiably omitted from a perfected appeal.

Pelaez v. Capra · filed 2023-02-08(2)(a), (2)(c)

Moreover, Pelaez's claims about his guilty plea and sentence are procedurally defaulted. The Appellate Division reached and rejected the merits of his claims about his guilty plea on his direct appeal, Pelaez, 954 N.Y.5.2d at 555-57, and under New York law courts "must deny a motion to vacate a judgment when [t]he ground or issue raised upon the motion was previously determined on the merits wpon an appeal from the judgment,” N.Y. Crim Proc. Law § 440.10(2)(a). Pelaez failed to raise on appeal his claim about his allegedly excessive sentence, and in New York courts must also deny a motion to vacate a judgment where "no... appellate review or determination occurred owing to the defendant's unjustifiable failure ... to raise such ground or issue upon an appeal actually perfected by him.” Id. § 440.10(2)(c).

Section 440.10(2)(c) bars relief for a claim unjustifiably omitted from direct appeal.

O'Donnell v. The People of the State of New York · filed 2023-05-25(2)(c)

Accordingly, O’Donnell is procedurally barred from raising it in a state post-judgment motion. See CPL § 440.10(2)(c) (no relief for claims unjustifiably not presented on appeal).

Section 440.10(2)(c) requires denial of a motion to vacate when the claim could have been reviewed on direct appeal from the trial record but was unjustifiably omitted.

Grefer v. Grant · filed 2023-09-25(2)(c)

Thus, if Petitioner returned to state court and filed a motion to vacate raising the involuntariness claim, it would be subject to mandatory denial pursuant to C.P.L. § 440.10(2)(c).

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

Beniquez v. Johnson · filed 2023-06-12(2)(c)

The appellant must raise record-based claims, like a challenge to jury addresses, by direct appeal rather than by a collateral motion in state court.

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

Thomas v. Kirkpatrick · filed 2023-08-25(2)(c)

Petitioner’s claim that the verdict was unsupported by sufficient evidence is record-based and thus, not reviewable in a N.Y.C.P.L. § 440.10 motion.

Section 440.10 permits summary denial of a claim based on an unpreserved trial error that could have been raised before the trial court.

The People v. Bradford · filed 2023-06-13

The courts below thus did not abuse their discretion by summarily denying the portion of defendant’s CPL 440.10 motion based on his unpreserved assertion of a Buchanan error, which could have been raised before the trial court.

Section 440.10(2)(c)'s procedural bar does not apply to a motion to set aside a sentence under § 440.20.

Graves v. Capra · filed 2023-08-16(2)(c)

Moreover, as Graves points out in his Reply, the Kings County Supreme Court relied on the procedural rules found in CPL § 440.10(2)(c), see Dkt. 4-2 at 180, whereas Graves brought his challenge under CPL § 440.20, where this rule does not apply, see Dkt. 6 at 33. Accordingly, the Kings County Supreme Court's reliance on the procedural bar in CPL 440.10(2)(c) was misplaced and the claim is not procedurally barred.

Section 440.10(2)(c) can bar a motion to vacate when a defendant unjustifiably failed to raise a claim on direct appeal despite a sufficient trial record.

Kelsey v. Lewin · filed 2024-01-18(2)(c)

That ground rests on the procedural rule set forth in section 440.10(2)(c) that Petitioner is required to first raise his arguments on direct appeal.

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 appeal.

People v. McKown · filed 2024-03-14(2)(b)

First, consistent with the provisions of CPL 440.10 (2) (b), "a court must deny a motion to vacate a judgment of conviction where 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" ... Having reviewed the record before us, sufficient facts appear on the record to resolve the merits of defendant's claims in the context of his direct appeal[*2]. Upon that basis alone, County Court properly denied defendant's postconviction motion.

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

Green-Faulkner v. Lowerre · filed 2024-04-24(2)(c)

Under New York law, if the petitioner failed to raise a record-based claim on direct appeal in state court, the petitioner may not then seek collateral relief in New York courts, and the claim is procedurally defaulted.

Section 440.10(2)(c) bars a collateral attack when a defendant unjustifiably failed to raise the claim on direct appeal.

Cruz v. Warden Ms./Mrs. Walcott · filed 2024-05-01(2)(c)

Petitioner has “no remaining avenue” by which to exhaust this claim. ... “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 Clark v. Perez, 510 F.3d 382, 393 (2d Cir. 2008).

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

Chen v. Miller · filed 2024-07-30(2)(c)

Chen’s claims are procedurally barred by CPL § 440.10(2)(c).

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

Baez v. Royce · filed 2024-05-03(2)(b)

The petitioner’s direct appeal was pending before the Appellate Division when he filed the 440.10 motion. The court, therefore, properly denied the motion under C.P.L. § 440.10(2)(b).

Section 440.10(2)(b) requires denial of a motion when the record contains sufficient facts to raise the claim on appeal.

People v. Shilman · filed 2024-09-24(2)(b)

A court must deny a motion under this provision where sufficient facts appear in the record to raise the issue on appeal (CPL § 440.10[2][b]). ... Here, the Court finds that there were sufficient facts on the record for the defendant to have raised his claim before pleading guilty ( see People v Crum , 184 AD3d 454, 455 [1st Dept. 2020], lv denied 35 NY3d 1065 [2020]).

Section 440.10(2)(b) and (c) do not require dismissal of ineffective assistance of counsel claims under the amended statute.

Clavijo v. Wolcott · filed 2024-05-21(2)(b) and (c)

The recent amendments to § 440.10 exempt ineffective assistance of counsel claims from the mandatory dismissal provisions of § 440.10(2)(b) and (c).

Section 440.10(2)(c) bars a record-based claim that the defendant was required to raise on direct appeal.

Zapata v. Yelich · filed 2024-06-28(2)(c)

However, this claim is deemed exhausted, but procedurally barred because this is a record- based claim that Zapata had to pursue on direct appeal pursuant to N.Y. C.P.L. § 440.10(2)(c).

Section 440.10(2)(b) can provide an adequate state procedural ground that bars federal habeas review when the state court clearly relies on it to reject a claim.

Dixon v. Superintendent of Eastern Correctional Facility · filed 2024-09-09(2)(b)

"NYCPL § 440.10(2)(b) constitutes just such an independent and adequate state procedural rule that operates to bar federal habeas relief." ... Here, the Section 440.10 court clearly and expressly stated that Dixon's "claims of prosecutorial misconduct are barred" from review, citing CPL § 440.10(2)(b).

Section 440.10(2)(b) requires denial of a motion to vacate when a pending direct appeal can adequately review the claims from facts apparent on the record.

People v. Hooker · filed 2024-09-26(2)(b)

In this regard, 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 his arraignments without the benefit of counsel, the alleged jurisdictionally defective waiver of indictment and SCI and the court's denial of youthful offender status — are based on facts that were apparent from the face of the record to permit adequate review upon direct appeal, as we addressed above ( see CPL 440.10 [2] [b]; People v Spradlin , 192 AD3d at 1273; People v Grays , 162 AD3d 1224, 1228 [2018], lv denied 32 NY3d 1111 [2018]). Accordingly, County Court did not err in denying that portion of defendant's CPL article 440 motion with respect to such claims[*4].

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

Rosario v. LaClair · filed 2024-10-11(2)(c)

Under New York law, a criminal defendant is barred from raising a claim on collateral review if the claim is a matter of record and the defendant unjustifiably fails to present it on direct appeal. See N.Y. Crim. Proc. Law § 440.10(2)(c). Here, petitioner’s claim regarding his identification is based on the trial court’s oral and written rulings—i.e., matters appearing in the record. Therefore, were he to return to state court, petitioner would be unable to raise this claim on collateral or direct review.

Section 440.10(2)(b) and (c)'s limits on reviewing record-based claims do not apply to an ineffective assistance of counsel claim.

People v. Bailey · filed 2024-11-21(2)(b), (c)

Moreover, the review limitations set forth in CPL 440.10 (2) (b) and (c) do not apply when, as here, a claim of ineffective assistance of counsel has been raised.

CPL 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim that cannot be resolved without facts outside the record.

People v. Padilla-Padilla · filed 2024-12-04

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Rodriguez , 224 AD3d 783, 785; People v Freeman , 93 AD3d 805, 806).

Section 440.10(3)(a) permits a court to deny a motion to vacate when the defendant could, with due diligence, have made the issue part of the record for direct appeal.

People v. Guilianelle · filed 2024-12-12(3)(a)

Moreover, this issue "could with due diligence by . . . defendant have readily been made to appear on the record in a manner providing adequate basis for review of such ground or issue upon an appeal from the judgment" as defendant was aware of his father's failing health at the time of the plea (CPL 440.10 [3] [a]).

Section 440.10 permits denial of a motion to vacate when the claim rests on facts apparent from the record or facts that due diligence could have made available for direct appeal.

People v. Carota · filed 2025-02-13(2)(b); (3)(a)

Similarly, as to defendant's challenge to the integrity of the grand jury proceedings, his claims in this regard are "based on facts that either were sufficiently apparent from the face of the record or — through the exercise of defendant's due diligence — could have been readily made to appear upon the record in a manner that would have permitted adequate appellate review upon defendant's direct appeal" ( People v Johnson , 194 AD3d 1267, 1268-1269 [3d Dept 2021]; see CPL 440.10 [2] [b]; [3] [a]).

Section 440.10(2)(c) precludes collateral review of a claim the defendant could have raised on direct appeal.

Coleman v. Bell · filed 2025-03-04(2)(c)

Additionally, collateral review is unavailable because Petitioner could have raised his Confrontation Clause claim on direct appeal and, thus, cannot raise it in a § 440.10 motion.

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

Brevard v. McCarthy · filed 2025-03-18(2)(c)

N.Y. Crim. Proc. Law § 440.10(2)(c) requires a court to deny a motion to vacate when a defendant unjustifiably failed to raise a record-based claim on direct appeal.

Section 440.10(3)(a) permits denial of a motion to vacate when a defendant unjustifiably failed to put readily available facts on the record before sentencing.

People v. Thornton · filed 2026-06-11(3)(a)

We therefore cannot say that defendant "unjustifiably" declined to create a factual record prior to sentencing that would have made his ineffective assistance of counsel claim reviewable upon direct appeal (CPL 440.10 [3] [a]; cf. People v Grubstein , 24 NY3d 500, 503 [2014]).

Section 440.10(3)(c) permits a court, for good cause and in the interest of justice, to grant an otherwise meritorious successive motion even when the defendant could have raised the ground earlier.

People v. Rahaman · filed 2026-04-30(3)(c)

Although a trial court may deny a successive CPL article 440 motion when "the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so[,] . . . . in the interest of justice and for good cause shown [the court] may in its discretion grant the motion if it is otherwise meritorious and vacate the judgment" (CPL 440.10 [3] [c]; see People v Rasul, 242 AD3d 1308, 1310 [3d Dept 2025]).

Section 440.10(3)(c) does not bar a later motion when the record does not show that the defendant could adequately have raised the claim in an earlier motion.

People v. Archer · filed 2026-06-24(3)(c)

Contrary to the People's further contention, the record does not demonstrate that the defendant was in a position to adequately raise this Brady violation upon his prior motion pursuant to CPL 440.10 ( see id. §§ 440.10[3][c]; 440.30[4][b]).

Section 440.10(3)(c) permits discretionary denial when a defendant could have raised a ground in an earlier motion, but the court may disregard that bar under the circumstances.

People v. Mower · filed 2025-10-23(3)(c)

Initially, although County Court had the discretionary authority to summarily deny defendant's motion on various procedural grounds, we find it appropriate to substitute our discretion and disregard these procedural bars for dismissal. ... Under these circumstances, we find that this discretionary procedural bar should be disregarded ( see People v Reed , 159 AD3d 1551, 1552 [4th Dept 2018]; People v Pett , 148 AD3d 1524, 1524 [4th Dept 2017]; People v Hamilton , 115 AD3d 12, 28 [2d Dept 2014]).

Section 440.10(3)(c) permits, but does not require, denial of a later motion to vacate based on a ground the defendant could adequately have raised in an earlier motion.

People v. Rasul · filed 2025-10-16(3)(c)

A court may deny a motion to vacate a judgment when, having made a prior CPL article 440 motion, "the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so" (CPL 440.10 [3] [c]). However, such denial is "not mandatory as CPL 440.10 (3) provides that in the interest of justice and for good cause shown the court may in its discretion grant the motion if it is otherwise meritorious and vacate the judgment" ( People v Perez , 185 AD3d 1156, 1158 [3d Dept 2020] [internal quotation marks, brackets and citation omitted]; see People v Lee , 172 AD3d 1925, 1926 [4th Dept 2019]).

Section 440.10(3)(a) permits denial of a motion to vacate when a defendant knew the basis for a claim but unjustifiably failed to raise it before judgment.

People v. Johnson · filed 2023-11-16(3)(a)

Notably, defendant was aware that the evidence against him was procured during the execution of the search warrant and that trial counsel had not challenged the search warrant and could have raised this issue before County Court, and unjustifiably failed to do so, supporting the denial of the motion on this ground ( see CPL 440.10 [3] [a]).

Section 440.10(3)(c) permits a court to deny a motion to vacate when the defendant could have raised the same ground in an earlier motion but did not.

People v. Green · filed 2022-01-19(3)(c)

CPL 440.10(3)(c) provides that "the court may deny a motion to vacate a judgment when . . . [u]pon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so" ( id. ; see People v Edmee , 183 AD3d 759, 760-761). Here, the defendant made three previous motions to vacate his conviction pursuant to CPL 440.10 and the defendant was in a position to adequately raise his current ineffective assistance of counsel claim in those prior motions but did not do so. Accordingly, the court providently exercised its discretion in denying that branch of the defendant's motion which was to vacate the judgment of conviction on the ground that he was denied the effective assistance of counsel.

Section 440.10(3)(c) permits a court to bar a claim raised in a second motion when the defendant failed to raise it in the first.

McCormick v. Jacobson · filed 2021-12-16(3)(c)

Because petitioner failed to raise his ineffective assistance of counsel claim in his first CPL § 440.10 motion, the second § 440.10 court permissibly found that he was procedurally barred from raising it in his subsequent motion.

Section 440.10(3)(b) and (c) permit a court to summarily deny a motion raising grounds the defendant raised, or could have raised, in a prior motion.

People v. Medina · filed 2021-10-07(3)(b), (3)(c)

The court providently exercised its discretion in summarily denying defendant's CPL 440.10 motion to vacate the judgment because it raised grounds that defendant either had raised, or was in an adequate position to have raised, in his prior such motion ( see CPL 440.10[3][b], [c]).

Section 440.10(3)(c) permits a court to deny a motion to vacate when the defendant could have raised the issue in an earlier motion but did not.

Brown v. Burnett · filed 2021-10-27(3)(c)

Here, there was a sufficient basis for the state court to rule that Petitioner's CPL § 440.10 motion related to counsel's failure to ensure that Kelly would testify before the grand jury was procedurally barred because the Petitioner was in a position to adequately raise the issue in the first motion and failed to do so. See N.Y. CPL § 440.10(3)(c).

Section 440.10(3)(c)'s interest of justice exception does not authorize setting aside a sentence or override the procedural bars in section 440.10(2).

People v. Vanderhorst · filed 2021-09-30(3)(c)

CPL 440.10 (3) (c), which provides grounds for the discretionary denial of a motion to vacate a judgment of conviction but carves out an exception where the interest of justice and good cause shown warrant granting the motion, does not authorize setting aside a sentence in the context of a CPL 440.10 motion. That is, the interest of justice provision in CPL 440.10 (3) does not override the procedural bars set forth in CPL 440.10 (2).

Section 440.10(3)(c) permits denial of a motion when the defendant could have adequately raised the claim in an earlier motion but did not.

People v. Gonzalez · filed 2021-06-02(3)(c)

The defendant was in a position to adequately raise his current claim of ineffective assistance of counsel in his previous motion pursuant to CPL 440.10, but did not do so ( see CPL 440.10[3][c]; People v Robinson , 183 AD3d 919; People v Huggins , 130 AD3d 1069).

Section 440.10(3)(c) permits a discretionary bar when the defendant was in a position to raise the ground adequately in an earlier motion but did not do so.

People v. Breedan · filed 2021-04-07(3)(c)

Furthermore, contrary to the Supreme Court's conclusion, we cannot say on this record that the defendant's contention was subject to the discretionary procedural bar set forth in CPL 440.10(3)(c). Although the defendant made prior motions to vacate his conviction pursuant to CPL 440.10, the defendant presented evidence that, never having appeared in open court with Bobb during the prosecution of the present indictment, he did not learn of Vecchione's representation of Bobb until 2011. Since the defendant's last CPL 440.10 motion was made in 2003, it cannot be said on this record that "[u]pon a previous motion made pursuant to [CPL 440.10], the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so" (CPL 440.10[3][c]).

Section 440.10(3)(a) permits a court to deny a motion to vacate when the defendant could, with due diligence, have developed facts supporting review on direct appeal.

People v. Dorsey · filed 2019-03-05(3)(a)

With respect to the due process claim, defendant argues that the court abused its discretion when it found, pursuant to CPL 440.10(3)(a), that the claim was barred because defendant could have, with due diligence, adduced supporting facts that would have provided an adequate basis for review by this Court on direct appeal. We see no reason to disturb this finding.

Section 440.10(3)(c) permits denial of a motion to vacate when the defendant could adequately have raised the ground in an earlier motion but did not.

People v. Huggins · filed 2015-07-29(3)(c)

The Supreme Court did not improvidently exercise its discretion in denying the defendant’s motion to vacate his judgment of conviction, which was made on the ground that he received ineffective assistance of counsel, since, on a previous motion that the defendant made pursuant to CPL 440.10, he “was in a position adequately to raise the ground or issue underlying the present motion but did not do so” (CPL 440.10 [3] [c]).

Section 440.10(3)(c) permits a court to deny a motion to vacate when the defendant could adequately have raised the ground in an earlier motion but did not.

People v. Wiggins · filed 2015-03-18(3)(c)

The County Court did not improvidently exercise its discretion when it denied the defendant’s motion to vacate his judgment of conviction, which was made on the ground that he received ineffective assistance of counsel, since, on previous motions that the defendant has made pursuant to CPL 440.10, he “was in a position adequately to raise the ground or issue underlying the present motion but did not do so” (CPL 440.10 [3] [c]).

A prior CPL 440.20 motion does not justify denying a CPL 440.10 motion because the defendant failed to raise its claims in the earlier motion.

People v. Auleta · filed 2011-03-17(3)(c)

Finally, while we agree with defendant that County Court (Herrick, J.) erred in denying his CPL 440.10 motion on the ground that he failed to raise the issues presented in his prior CPL 440.20 motion (see CPL 440.10 [3] [c]), the court went on to properly deny the motion on the merits.

Section 440.10(3)(c) can bar federal habeas review of a claim that could have been raised in an earlier motion to vacate.

Baptiste v. Ercole · filed 2011-01-21(3)(c)

Section 440.10(3)(c) is an adequate state ground to serve as a procedural bar to federal habeas review of the merits of an ineffective assistance of counsel claim.

Section 440.10(3)(c) permits a court to deny a claim that the defendant could have raised in an earlier motion to vacate judgment but did not.

People v. Fuller · filed 2010-07-06(3)(c)

There appears to have been no impediment to defendant’s having raised this claim in his previous CPL 440.10 motion, but he failed to do so. Therefore, defendant’s motion on this ground is denied pursuant to CPL 440.10 (3) (c).

Section 440.10(3)(c) permits a state court to deny a successive motion when the defendant could have raised the issue earlier, but it does not impose an absolute bar.

Borcyk v. Lempke · filed 2010-08-02(3)(c)

While CPL § 440.10(3)(c) provides that a state court “may deny” a motion to vacate where “[u]pon a previous motion ... the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so, such denials are discretionary and do not impose an absolute bar on successive motions.”

Section 440.10(3)(a) permits denial of a motion to vacate when the defendant unjustifiably failed to put available facts on the trial record for direct appellate review.

People v. Gutierrez · filed 2008-12-30(3)(a)

Accordingly, that branch of the defendant’s motion pertaining to his legal sufficiency claim should have been denied pursuant to CPL 440.10 (3) (a).

Section 440.10(3)(a) permits denial of a motion to vacate without a hearing when the defendant could have raised the claim before sentencing through due diligence.

People v. Kaszubinski · filed 2008-10-30(3)(a)

Accordingly, and despite the fact that her diagnosis of posttraumatic stress disorder occurred after sentencing, we find no reason why, if defendant’s ability to understand these proceedings was truly compromised, these issues were not brought to the court’s attention prior to sentencing. Therefore, we conclude that County Court did not abuse its discretion in denying defendant’s motion to vacate the judgment of conviction without a hearing and its order should be affirmed in all respects (see CPL 440.10 [3] [a]).

Section 440.10(2)(c) requires denial without a hearing of claims that could have been raised on direct appeal; subsection (3)(c) permits denial of claims that could have been raised in a prior motion.

People v. Cochrane · filed 2006-03-21(2)(c), (3)(c)

To the extent the defendant’s claims concern matters appearing on the record, and thus could have been raised on his direct appeal, the Supreme Court’s summary denial of the defendant’s motion without a hearing was mandated (see CPL 440.10 [2] [c]; People v Jossiah, 2 AD3d 877 [2003]). To the extent the defendant’s contentions concern matter dehors the record, they could have been raised on either one of his two previous CPL 440.10 motions, and thus the Supreme Court’s denial of the current motion without a hearing was within its discretion, which we conclude was providently exercised (see CPL 440.10 [3] [c]; People v Dover, 294 AD2d 594, 596 [2002]).

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

People v. Hall · filed 2006-04-18(2)

The defendant’s contention that his prior attorneys should have moved to dismiss the indictment because he did not receive a speedy trial 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]; People v Mower, 97 NY2d 239 [2002]; People v Cooks, 67 NY2d 100 [1986]; People v Williams, 5 AD 3d 407 [2004]).

Section 440.10(3)(c) permits denial of a motion when the defendant could have raised its ground in an earlier motion but did not.

People v. Brown · filed 2005-12-22(3)(c)

The motion was procedurally barred, because upon defendant’s previous 440.10 motion, he “was in a position adequately to raise the ground or issue underlying the present motion but did not do so” (CPL 440.10 [3] [c]).

Section 440.10(3)(a) permits a court to deny a motion to vacate when the supporting facts could readily have been made to appear on the record.

People v. Castillo · filed 2005-10-18(3)(a)

The court properly exercised its discretion in denying defendant’s motion to vacate judgment on the ground that it was based on factual assertions concerning his physical condition at the time of his plea that could have “readily been made to appear on the record” (CPL 440.10 [3] [a]; see People v Degondea, 3 AD3d 148, 156-160 [2003], lv denied 2 NY3d 798 [2004]).

Section 440.10(3)(a) permits rejection of a motion to vacate based on facts the defendant knew before trial and could have raised then.

People v. Thorsen · filed 2005-07-07(3)(a)

All relevant facts regarding the arrest were known to defendant prior to his trial and, thus, his argument should have been raised at that time (see CPL 440.10 [3] [a]; People v Williams, 286 AD2d 620, 620-621 [2001], lv denied 97 NY2d 659 [2001]).

Section 440.10(3)(a) permits denial of a motion to vacate when the defendant knew the facts supporting the claim before pleading guilty and waiving appeal.

People v. Kuklinski · filed 2005-06-23(3)(a)

Defendant’s CPL 440.10 motion to vacate the judgment of conviction was properly denied without a hearing. ... Clearly, however, defendant was well aware of this ruse when he opted to plead guilty and waived his right to appeal (see CPL 440.10 [3] [a]; People v Berezansky, 229 AD2d 768, 771 [1996], lv denied 89 NY2d 919 [1996]).

Section 440.10(3)(c)'s procedural bar applies only to motions under section 440.10, not motions under section 440.20.

People v. McCants · filed 2005-02-04(3)(c)

Finally, we note that the court erred in denying defendant’s motion based upon the procedural bar set forth in CPL 440.10 (3) (c). That procedural bar 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.

Section 440.10(2)(c) and (3)(a) and (c) provide procedural bars to claims raised in a motion to vacate a judgment.

People v. Williams · filed 1992-10-19(2)(c), (3)(a), (3)(c)

The Supreme Court properly determined that the defendant’s claims are procedurally barred (see, CPL 440.10 [2] [c]; [3] [a], [c]).