People v Smith

People v Smith 2007 NY Slip Op 00161 [36 AD3d 633] January 9, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 14, 2007

The People of the State of New York, Respondent,
v
Thomas Smith, Appellant.

—[*1] Thomas Smith, Dannemora, N.Y., appellant pro se.

Michael E. Bongiorno, District Attorney, New City, N.Y. (Stephanie A. Small of counsel), for respondent.

Appeal by the defendant, by permission, from an order of the County Court, Rockland County (Resnik, J.), dated July 19, 2005, which, without a hearing, denied his motion pursuant to CPL 440.10 to vacate a judgment of the same court rendered September 28, 2004, convicting him of assault in the first degree and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the order is affirmed.

The County Court properly denied the defendant's motion pursuant to CPL 440.10 to vacate his judgment of conviction on the ground that he was denied the effective assistance of counsel. The defendant's contention that his attorney should have moved to dismiss the indictment because he did not receive a speedy trial could have been raised on direct appeal from the judgment and, accordingly, the County Court was required to deny that branch of the motion (see CPL 440.10 [2]; People v Cooks, 67 NY2d 100 [1986]; People v Hall, 28 AD3d 678 [2006], lv denied 7 NY3d 867 [2006]; People v Williams, 5 AD3d 407 [2004]).

In any event, the defendant was not denied the effective assistance of counsel. Mastro, J.P., Florio, Fisher and Dillon, JJ., concur.