Opinion
No. 2005-08265.
March 27, 2007.
Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Reichbach, J.), dated August 1, 2005, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court dated November 15, 2000, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
Abraham Abramovsky, New York, N.Y. (Peter A Sell, Robert M. Grossman, and Jonathan I. Edelstein of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Phyllis Mintz of counsel), for respondent.
Before: Rivera, J.P., Santucci, Angiolillo and Dickerson, JJ., concur.
Ordered that the order is affirmed.
Contrary to the defendant's contention, People v Payne ( 3 NY3d 266) and People v Suarez ( 6 NY3d 202) do not apply retroactively ( see Policano v Herbert, 7 NY3d 588; People v Pepper, 53 NY2d 213, 221). Even under the standard espoused in People v Hafeez ( 100 NY2d 253), which was decided after this Court rendered its decision and order on the defendant's direct appeal ( see People v Epps, 305 AD2d 697) but before his conviction became final ( see Policano v Herbert, supra), the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt ( see People v Vaughn, 2 AD3d 656; People v Marsh, 140 AD2d 631).
The defendant's remaining claims regarding alleged ineffective assistance of trial counsel are procedurally barred ( see CPL 440.10 [a], [c]).