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PEOPLE v. HOLMES

Ind. No. 5745/07. Appeal No. 15281. Case No. 2018-03170.

202 A.D.3d 519 (2022)

162 N.Y.S.3d 56

2022 NY Slip Op 00951

The People of the State of New York, Respondent, v. Marvin Holmes, Appellant.

Appellate Division of the Supreme Court of New York, First Department.

Decided February 10, 2022.

Attorney(s) appearing for the Case

Feldman & Feldman, Manhasset (Steven A. Feldman of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), for respondent.

Concur—Gische, J.P., Kern, Moulton, Kennedy, Rodriguez, JJ.

The Supreme Court properly denied defendant's CPL 440.10 motion without a hearing. Despite an opportunity to do so, defendant failed to alert the court that it did not rule on his claim of actual innocence, raised in his initial motion. Accordingly, that claim is unpreserved (see e.g. People v Henriquez, 246 A.D.2d 427 [1st Dept 1998], lv denied 91 N.Y.2d 942 [1998]), and we decline to review it in the interest of justice...

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