From Casetext: Smarter Legal Research

People v. Kelly

Appellate Division of the Supreme Court of New York, Second Department
Apr 22, 1985
110 A.D.2d 856 (N.Y. App. Div. 1985)

Opinion

April 22, 1985

Appeal from the Supreme Court, Kings County (Kreindler, J.).


Order affirmed insofar as appealed from.

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 A.D.2d 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 U.S. 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).

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 U.S. 745; 103 S Ct 3308, 3312-3314; cf. People v. Gonzalez, 47 N.Y.2d 606).

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


Summaries of

People v. Kelly

Appellate Division of the Supreme Court of New York, Second Department
Apr 22, 1985
110 A.D.2d 856 (N.Y. App. Div. 1985)
Case details for

People v. Kelly

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ARTHUR KELLY, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 22, 1985

Citations

110 A.D.2d 856 (N.Y. App. Div. 1985)

Citing Cases

People v. Swinson

The issue required no esoteric research. Standard texts, such as the Pattern Jury Instructions (1 CJI [NY]…

People v. Calderon

Accordingly, the defendant's motion to vacate the judgment on the grounds that the verdict violates the…