
    The People of the State of New York, Respondent, v Michael Purcell, Appellant.
   Appeal by the defendant, by permission, from (1) an order of the Supreme Court, Kings County (Heller, J.), entered July 17, 1985, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the Supreme Court, Kings County (Starkey, J.), rendered May 14, 1976, convicting him of murder in the second degree (two counts) and arson in the second degree, upon a jury verdict, and imposing sentence; and (2) so much of an order of the same court, entered September 10, 1985, as, upon reargument, adhered to the prior determination.

Ordered that the appeal from the order entered July 17, 1985 is dismissed, as that order was superseded by the order entered September 10, 1985, made upon reargument; and it is further,

Ordered that the order entered September 10, 1985 is affirmed insofar as appealed from.

We find that the Supreme Court properly denied the defendant’s motion to vacate the judgment of conviction premised on ineffective assistance of counsel (see, CPL 440.10). The claims asserted in support of the application were previously determined on the merits upon the defendant’s direct appeal from the judgment (see, CPL 440.10 [2] [a]; People v Purcell, 80 AD2d 1002), or could have been, but were not raised upon the direct appeal (see, CPL 440.10 [2] [c]), or were unsubstantiated by sworn allegations (see, CPL 440.30 [4] [b]), or, to the extent they were premised on facts not apparent from the record, did not include material allegations which would entitle the defendant to vacatur of the conviction on the ground of ineffective assistance of trial counsel (see, People v Satterfield, 66 NY2d 796, 799-800; People v Baldi, 54 NY2d 137; People v Settembre, 152 AD2d 681). Kunzeman, J. P., Kooper, Sullivan and Harwood, JJ., concur.  