THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DAMION SMITH DEFENDANT APPELLANT (2010)

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. DAMION SMITH, DEFENDANT-APPELLANT.

KA 07-00800

Decided: November 12, 2010

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND GREEN, JJ.

LIBERTYBELL LAW GROUP, BURBANK, CALIFORNIA (EDWARD THOMAS DUNN, JR., OF THE CALIFORNIA BAR, ADMITTED PRO HAC VICE, OF COUNSEL), FOR DEFENDANT-APPELLANT. FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Supreme Court, Erie County (Penny M. Wolfgang, J.), entered February 26, 2007. The order denied the motion of defendant to vacate a judgment of conviction pursuant to CPL 440.10.

It is hereby ORDERED that the order so appealed from is unanimously affirmed.

Defendant further contends for the first time on this appeal from the order denying his CPL article 440 motion that he was denied effective assistance of appellate counsel on his direct appeal. That contention is based on his appellate attorney's failure to raise the two Rosario issues that are the subject of the motion. The proper vehicle for challenging the representation of appellate counsel, however, is by way of a motion for a writ of error coram nobis (see People v. Bachert, 69 N.Y.2d 593, 595-596; People v. Hogue, 62 AD3d 410, 411; People v. Watson, 49 AD3d 570, lv denied 10 NY3d 872).

Patricia L. Morgan

Clerk of the Court

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