People v Perez

People v Perez 2017 NY Slip Op 06909 Decided on October 3, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 3, 2017
Friedman, J.P., Manzanet-Daniels, Kapnick, Kern, Singh, JJ.
4574 44560C/05

[*1]The People of the State of New York, Respondent,

v

Lawrence Perez, Defendant-Appellant.

Feldman and Feldman, Uniondale (Steven A. Feldman of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Noah J. Chamoy of counsel), for respondent.

Order, Supreme Court, Bronx County (Martin Marcus, J.), entered on or about April 14, 2016, which denied defendant's CPL 440.10 motion to vacate a judgment of conviction rendered August 5, 2008, unanimously affirmed.

The only argument raised on this appeal is identical to a claim this Court rejected on defendant's direct appeal, regarding the trial court's retention of an allegedly unqualified juror (142 AD3d 869, 870 [1st Dept 2016], lv denied 28 NY3d 1149 [2017]). Aside from the fact that this record-based issue is not the proper subject of a CPL 440.10 motion, we see no reason to depart from our prior determination.

To the extent defendant's CPL 440.10 motion alleged ineffective assistance of trial counsel, that claim has been abandoned on appeal. In the alternative, we find that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 3, 2017

CLERK