the issue on direct appeal” of his conviction. (Resp.’s Ex. 2, County Court Order Dated Sept. 1, 2009, Aug. 26, 2010, ECF No. 8-4.) Noting that “[t]he purpose of a 440.10 [motion] is to advise the Court of facts that were unknown at the time of the judgment,” the County Court rejected Petitioner’s legal insufficiency claim as unpreserved since it relied entirely on matters of record being improperly raised for the first time. Id. Failure to preserve an issue for state appellate review by not raising it on direct appeal is clearly an adequate and independent procedural ground recognized in New York and one on which the County Court relied in denying Petitioner’s motion to vacate judgment. See, e.g., People v. Cooks, 67 N.Y.2d 100, 103-04, 500 N.Y.S.2d 503, 491 N.E.2d 676 (N.Y.1986) (<HOLDING>); see also People v. Jossiah, 2 A.D.3d 877, 769
holding that an issue not raised on direct appeal of sentence is barred by the law of the case from presentation in a subsequent appeal recognizing that the rule disallowing matters of record to be raised on a 44010 motion is designed to prevent cpl 44010 from being employed as a substitute for direct appeal when defendant was in a position to raise an issue on appeal or could readily have raised it on appeal but failed to do so holding that an issue not raised in the trial court cannot be raised for the first time on appeal holding claims must be raised on direct appeal or waived holding that an issue not raised on appeal is waived