PEOPLE v. PACHECO (2008)

Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Guzman, J.), dated June 30, 2006, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court (Barbaro, J.), rendered January 10, 2001, convicting him of murder in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the order is affirmed.

The defendant's claim regarding ineffective assistance of trial counsel could have been raised on direct appeal from the judgment of conviction (see CPL 440.10[2][a], [c] ).  In any event, the claim is without merit because the defendant did not establish that counsel's representation was deficient (see People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Specifically, the defendant did not establish that counsel was deficient in failing to move to dismiss the count charging him with depraved indifference murder on the ground that the facts supported a finding of intent rather than recklessness since, at the time of the trial, counsel was acting in accord with the law defining depraved indifference murder (see People v. Danielson, 9 N.Y.3d 342, 350, 849 N.Y.S.2d 480, 880 N.E.2d 1;  People v. Paisley, 93 N.Y.2d 1024, 697 N.Y.S.2d 583, 719 N.E.2d 944).