THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. BANGALY CHELLEY ALSO KNOWN AS DENIS CHELLEY DEFENDANT APPELLANT (2016)

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 (M. William Boller, A.J.), entered December 3, 2013.  The order summarily denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting defendant of murder in the second degree and criminal possession of a weapon in the second degree.

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

Memorandum:  Defendant appeals from an order summarily denying his motion pursuant to CPL 440.10 to vacate the judgment convicting him of murder in the second degree (Penal Law § 125.25[1] ) and criminal possession of a weapon in the second degree (§ 265.03[3] ), contending that he was entitled to a hearing on his claim that he was deprived of effective assistance of counsel at trial.  In denying the motion, Supreme Court properly concluded that most of defendant's challenges to his attorney's performance are based on matters in the record that were, or could have been, raised on defendant's direct appeal.  Defendant was therefore not entitled to a hearing on those allegations of ineffective assistance of counsel (see CPL 440.10[2][a], [c];  People v. Vigliotti, 24 AD3d 1216, 1216–1217).

Frances E. Cafarell

Clerk of the Court