Opinion
May 20, 1976
Appeal from an order of the County Court of Hamilton County, entered September 23, 1975, which denied, without a hearing, a motion to vacate a judgment convicting defendant of murder. Defendant brings this proceeding to seek relief from his July 1, 1974 murder conviction upon the claim that his constitutional rights have been violated (CPL 440.10, subd 1, par [h]). He also contends that he is entitled to a hearing on the factual issues he raises under CPL 440.30. CPL 440.10 (subd 2, par [b]) states that a motion to vacate a judgment must be denied when, at the time of the application, the judgment is appealable or pending on appeal and the record contains sufficient information about the ground or issue raised to permit adequate review on the appeal. CPL 440.30 (subd 2) provides that when there are "circumstances which require denial [of the motion] pursuant to subdivision two of section 440.10 * * * the court must summarily deny the motion". On February 5, 1976 this court passed upon the constitutional issues raised by the defendant (People v Garrow, 51 A.D.2d 814). Because defendant is attempting to relitigate the issues already decided by this court in his direct appeal, the trial court correctly decided the instant motion without a hearing (CPL 440.10, subd 2, par [b]; CPL 440.30, subd 2). We find no error in the refusal of the trial court to consider defendant's reply affidavit because there was no claim therein removing this case from the operation of CPL 440.10 (subd 2, par [b]) and CPL 440.30 (subd 2). Order affirmed. Koreman, P.J., Sweeney, Kane, Mahoney and Larkin, JJ., concur.