The defendant, James Washington, has filed a motion, pro se, seeking an order of this Court vacating his judgment of conviction, pursuant to CPL §440.10. The defendant alleges that he was denied effective assistance of counsel from two different attorneys. First, the defendant alleges that his first attorney, Frank Hancock, Esq did not adequately represent him because of a fee dispute, and in doing so, failed to request a Payton (445 US 573 [1980]) hearing. Next, the defendant alleges that his attorney, Scott Brettschneider, Esq., did not adequately represent him because at the time Mr. Brettschneider was representing the defendant, Mr. Brettschneider was also representing the defendant's uncle, Mr. Trevor Baily, and in doing so, Mr. Brettschneider failed to object to a Brady (373 US 83 [1963]) violation. Finally the defendant claims that the People committed misconduct during their summation. The People oppose the defendant's claims in their entirety.

This indictment arose out of an incident that took place on November 2, 2001. On that date, the defendant struck Darryl Pelle in the head with a baseball bat, injuring Pelle's head and causing his death several days later. As a result, the defendant was charged with murder in the second degree (two counts) (PL §125.25(1)&(2)), criminal possession of a weapon in the third degree (PL §265.02 (1)) and criminal possession of a weapon in the fourth degree (PL §265.01 (2)). The defendant waived a jury and proceeded to trial before the Hon. S. Rotker, JSC. The defendant was ultimately convicted of manslaughter in the first degree (PL §125.20), criminal possession of a weapon in the third [*2]degree (PL §265.02 (1)) and criminal possession of a weapon in the fourth degree (PL §265.01 (2)). On June 17, 2004, the defendant was sentenced to a determinate prison term of twenty-three years on the manslaughter in the first degree count, and an indeterminate term of three and one-half to seven years on the third degree weapons count. (The conviction for criminal possession of a weapon in the fourth degree was dismissed by the People at the time of sentencing). This time was to run concurrently. The defendant was sentenced as a second violent felony offender.

The defendant appealed to the Appellate Division, Second Department. On January 17, 2006, the defendant perfected his appeal through counsel. The appeal raised the issues of trial court error in that the trial court erred by denying the defendant access to the decedent's prior criminal record and excluding it from the trial. In addition, the defendant argued that the justification defense should have been applied to the weapons charge.

On May 16, 2006, the defendant, pro se filed a supplemental brief. Here, the defendant claimed he was denied effective assistance of counsel. The defendant asserts that the hearing court failed to conduct an inquiry into the alleged conflict of interest that existed between the defendant and his attorney prior to the pre-trial hearing. In addition, the defendant argued that the court assumed the role of prosecutor at the trial, verdict and sentencing. The defendant's appeal is still pending.

Criminal Procedure Law §440.10 governs circumstances whereby a defendant's judgment of conviction may be vacated. Criminal Procedure Law §440.10 (2)(b) provides, in pertinent part that "...the court must deny a motion to vacate judgment when: The judgment is at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal...".

Criminal Procedure Law §440.10 (2) (c)provides, in pertinent part that "...the court must deny a motion to vacate judgment when: Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect on appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him...".

Criminal Procedure Law §440.30 (4)(d) specifically provides that "Upon considering the merits of the motion, the court may deny it without conducting a hearing if: An allegation of fact [*3]essential to support the motion (i) is contradicted by a court record or other official document, or is made solely by the defendant and is unsupported by any other affidavit or evidence and (ii) under these and all the other circumstances attending the case there is no reasonable possibility that such allegation is true".

At the outset, this Court notes that the defendant's claim that he received ineffective assistance of counsel from his first attorney cannot be decided by this Court as it is currently being litigated in the Appellate Division, Second Department. This claim was brought to the hearing court's attention prior to the pre-trial hearing. This claim is "on the record". This specific argument was raised in the defendant's supplemental brief. As this matter is pending before the Appellate Division, Second Department, this Court cannot properly review it. (See CPL §440.10 (2)(b)).

The defendant also asserts that his first attorney was ineffective because he did not request a Payton hearing. The defendant has failed to raise this issue in his direct appeal and has not offered any reason for his failure to do so. Had this issue been raised on appeal, sufficient facts would have appeared on the record permitting adequate review of this issue. This Court is well aware that claims made in a CPL §440 motion can not be used as a substitute for a direct appeal. (See CPL §440.10 (2)

(c). (See also People v Cooks, 67 NY2d 100 [1986]); People v Ford 205 AD2d 798 (2nd Dept. [1994]). Accordingly, this claim is barred from review.

The defendant's next claim attacks his representation by the second attorney. Here, the defendant asserts that the simultaneous representation by his attorney of the victim's (Pelle's) uncle and himself proved fatal to his case in that his second attorney did not explore an alleged Brady violation. This Court notes that the defendant acknowledges that the attorney's representation of the victim's uncle was unrelated to this instant case. The uncle was not called as a witness in this case or mentioned during the trial of this matter. This defendant does not even state whether the attorney knew of this simultaneous representation at the time of the trial. There is no supporting documentation provided by the defendant to indicate whether this conflict existed, whether the attorney knew about it or if it affected whether the attorney's representation of the defendant. The defendant has not alleged or provided any supporting documentation to show whether this alleged simultaneous representation affected his defense. The defendant must show that the conduct of his attorney was in fact affected by the conflict of interest. (See People v Allen, 88 NY2d 831 [1996]). As such, the defendant is not entitled to have his judgment of conviction vacated on this ground. (See CPL §440.30 (4)(d));(See People v [*4]Smart, 96 NY2d 793 [2001]). Allen supra.

In his last claim, the defendant finds error in that his trial counsel failed to object to the People's alleged Brady violations and to the People's alleged misconduct during summation, and in doing so, was ineffective. These are claims property raised in a direct appeal. The defendant has not raised these claims in the brief submitted by counsel, or in his own pro se supplemental brief. The defendant has offered no legal reason for not raising these claims on his direct appeal. Therefore, this claim is barred from consideration by this Court.

In sum, the defendant motion to vacate his judgment of conviction is denied for the reasons stated above.

The foregoing constitutes the order, opinion and decision of

this court.

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STEPHEN A. KNOPF, J.S.C.