Opinion
June 18, 1990
Appeal from the Supreme Court, Kings County (Kreindler, J.).
Ordered that the judgment is affirmed.
We reject the defendant's claim that CPL 450.10 and 450.15 Crim. Proc., which authorize appeals from an order denying a motion to vacate a judgment of conviction (see, CPL 440) only by permission, are unconstitutional (NY Const, art VI, § 4 [k]). This court has noted that: "a motion pursuant to CPL 440.10 to vacate a judgment on the ground of ineffectiveness of counsel, like an order denying a common-law writ of error coram nobis, is an `intermediate order', an appeal from which may be limited or conditioned (see, People v. Gersewitz, 294 N.Y. 163, cert dismissed 326 U.S. 687; mem of State Exec Dept., 1971 McKinney's Session Laws of NY, at 2463; cf., People v. Pollenz, 67 N.Y.2d 264) " (People v. Ghee, 153 A.D.2d 954; People v. Bellamy, 160 A.D.2d 886). Thus, the defendant's claim of ineffective assistance of counsel which was denied on the merits on his motion pursuant to CPL 440.10, is not properly before this court on direct appeal. Leave to appeal from that order was denied by order of this court dated June 20, 1989 (see, CPL 450.10, 450.15 Crim. Proc. [1]; People v. Drummond, 104 A.D.2d 825, 826).
In addition, we reject the defendant's remaining contention, which can be determined from the record on appeal, that he was deprived of the effective assistance of counsel. Defense counsel's efforts, as a whole, afforded the defendant "meaningful representation" (see, People v. Baldi, 54 N.Y.2d 137, 147). Counsel made various pretrial motions, effectively cross-examined witnesses, raised numerous objections, delivered a cogent opening and closing statement, made appropriate posttrial motions, and made a logical and compelling statement on behalf of the defendant at sentencing. Thus, taken as a whole, his performance was sufficiently competent to satisfy the defendant's constitutional right to the effective assistance of counsel (see, People v. Baveghems, 137 A.D.2d 822, 823; People v Robinson, 133 A.D.2d 473, 474; People v. Morris, 100 A.D.2d 630, affd 64 N.Y.2d 803). Moreover, defense counsel's assistance was not constitutionally ineffective merely because some of his strategic choices turned out to be unsuccessful (see, People v Hinton, 140 A.D.2d 712). Bracken, J.P., Kooper, Rubin and Miller, JJ., concur.