           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

583
KA 14-01638
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JOVAN L. BARKSDALE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JOVAN L. BARKSDALE, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (NICHOLAS
T. TEXIDO OF COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Erie County Court (Kenneth F. Case, J.), dated July 29, 2014. The
order denied the motion of defendant pursuant to CPL 440.10.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from an order summarily denying
his motion pursuant to CPL 440.10 to vacate the judgment convicting
him upon a jury verdict of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]), contending in his main and pro
se supplemental briefs that he was entitled to a hearing on his claim
that he was deprived of effective assistance of counsel at trial. We
reject that contention inasmuch as defendant’s challenges to his
attorney’s performance were already raised on direct appeal and
rejected by this Court (People v Barksdale, 129 AD3d 1497, 1498, lv
denied 26 NY3d 926, reconsideration denied 26 NY3d 1007). Defendant
was therefore not entitled to a hearing (see People v Chelley, 137
AD3d 1720, 1720-1721).




Entered:    June 17, 2016                          Frances E. Cafarell
                                                   Clerk of the Court
