People v. Kelly

On review of the record and the extensive procedural history of this case, we agree with Criminal Term that under CPL 440.10 (2) (a), (c), defendant’s motion to vacate the judgment must be denied.

By order dated April 9, 1979, we previously affirmed defendant’s judgment of conviction, without opinion (People v Kelly, 69 AD2d 1022). Further, by order dated June 12, 1980, we denied defendant’s pro se motion for reargument of the appeal. At the time, we rejected defendant’s claims, raised again herein, concerning (1) the applicability of Payton v New York (445 US 573) to the instant case, and (2) defendant’s adjudication as a persistent felony offender and sentencing under Penal Law § 70.10. Therefore, as to these issues, Criminal Term properly denied defendant’s motion to vacate the judgment (CPL 440.10 [2]).

We also find no merit to defendant’s contention that he was denied the effective assistance of appellate counsel (see, Evitts v Lucey, 469 US _, 105 S Ct 830, 836; Jones v Barnes, 463 US 745; 103 S Ct 3308, 3312-3314; cf. People v Gonzalez, 47 NY2d 606).

With respect to defendant’s remaining contentions, we find them to be without merit. Titone, J. P., Bracken, Rubin and Lawrence, JJ., concur.