
    The People of the State of New York, Respondent, v Shawn D. McCumiskey, Appellant.
    (Appeal No. 2.)
    [784 NYS2d 468]
   Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Genesee County Court (Robert C. Noonan, J.), dated October 9, 2003. The order denied defendant’s motion pursuant to CPL article 440 to vacate the judgment in appeal No. 1.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed.

Same memorandum as in People v McCumiskey (12 AD3d 1145 [2004]). Present—Hurlbutt, J.P., Scudder, Kehoe, Gorski and Martoche, JJ.  