PEOPLE v. McPHERSON (2005)

Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (D'Emic, J.), dated January 12, 2004, which denied, without a hearing, her motion pursuant to CPL 440.10 to vacate a judgment of conviction of the same court rendered June 26, 2001, convicting her of murder in the second degree and criminal possession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence.

ORDERED that the order is affirmed.

The Supreme Court erred in concluding that the defendant's motion to vacate her conviction was procedurally barred, since her claim of ineffective assistance of counsel involves matter dehors the record (see CPL 440.10).   Nevertheless, the defendant failed to establish, prima facie, that she was deprived of meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Thus, the court properly denied the motion without a hearing (see CPL 440.30[4], [5];  People v. Satterfield, 66 N.Y.2d 796, 497 N.Y.S.2d 903, 488 N.E.2d 834).

The defendant's remaining contentions are without merit.