People v. Jackson

• Citation: 266 A.D.2d 163,699 N.Y.S.2d 40
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>JAMES JACKSON, Appellant.
• Decision Date: 30 November 1999
• Court: New York Supreme Court Appellate Division

266 A.D.2d 163
699 N.Y.S.2d 40

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
JAMES JACKSON, Appellant.

Decided November 30, 1999.

Concur — Sullivan, J. P., Tom, Rubin and Buckley, JJ.

Defendant's motion to vacate his 1994 conviction was properly denied on the basis of CPL 440.10 (2) (c). A CPL 440.10 motion may not be used as a device to take a belated appeal on an issue that appears on the face of the record (People v Cooks, 67 NY2d 100).

We find no basis upon which to disturb defendant's 1997 conviction. The alleged error in the 1994 conviction concerning the proper degree of auto stripping did not create a jurisdictional defect (see, People v Taylor, 65 NY2d 1) with respect to the 1997 conviction. We note that the 1997 indictment for auto stripping in the second degree (Penal Law § 165.10 [1]) required a prior auto stripping conviction within five years, irrespective of whether the prior auto stripping was a felony or misdemeanor, and that the 1994 conviction satisfied that

[266 A.D.2d 164]

requirement. We have considered and rejected defendant's remaining claims.