
    The People of the State of New York, Respondent, v David Sell, Appellant.
    [864 NYS2d 379]
   Appeal by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Supreme Court, Erie County (Mario J. Rossetti, A.J.), entered August 29, 2003. The order denied the motion of defendant pursuant to CPL 440.10 to vacate the judgment convicting him of murder in the second degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree.

It is hereby ordered that the order so appealed from is unanimously affirmed. Present—Scudder, P.J., Hurlbutt, Martoche, Green and Gorski, JJ.  