People v. Shih Wei Su , 699 N.Y.S.2d 291 ( 1999 )

—Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County (Spires, J.), dated April 22, 1996, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the Supreme Court, Queens County (Linakis, J.), rendered February 25, 1992, convicting him of attempted murder in the second degree (two counts), assault in the first degree (two counts), and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the order is affirmed.

The Supreme Court properly denied the defendant’s motion to vacate the judgment of conviction on the ground of ineffective assistance of trial counsel (see, CPL 440.10). The claims asserted in support of the application were either previously determined on the merits upon the defendant’s direct appeal from the judgment (see, CPL 440.10 [2] [a]; People v Shih-Wei Su, 213 AD2d 502), or could have been, but were not raised upon the direct appeal (see, CPL 440.10 [2] [c]). To the extent that the claims were premised on facts not apparent from the record, they did not raise material allegations which would entitle the defendant to vacatur of the judgment on the ground of ineffective assistance of trial counsel (see, People v Purcell, 160 AD2d 899, 900).

The defendant’s remaining contentions are without merit. O’Brien, J. P., Santucci, Friedmann and Florio, JJ., concur.