PEOPLE v. BROWN (2005)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Raymond BROWN, Defendant-Appellant.

Decided: December 22, 2005

BUCKLEY, P.J., MAZZARELLI, ANDRIAS, SAXE, SULLIVAN, JJ.

Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Nancy D. Killian of counsel), for respondent.

Order, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), entered on or about August 5, 2004, which denied defendant's CPL 440.10 motion to vacate the judgment of the same court and Justice, rendered August 9, 2001, convicting him, upon his plea of guilty, of murder in the second degree, and sentencing him to a term of 15 years to life, unanimously affirmed.

The court properly exercised its discretion in summarily denying defendant's CPL 440.10 motion. 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] ). Furthermore the motion was without merit since it was based upon defendant's conclusory and otherwise unsupported claims, which were refuted by the record (see CPL 440.30[4][b], [d] ).

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