| People v Johnson |
| 2009 NY Slip Op 06037 [64 AD3d 792] |
| July 28, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Darrin Johnson, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGiudice, J.), rendered February 15, 2005, convicting him of criminal possession of a weapon inthe third degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that he was denied his right to the effective assistance of counsel. Insupport of his contention, the defendant alleges that before he entered his plea of guilty, hisattorney improperly advised him regarding how a period of incarceration in another state wouldaffect his adjudication as a persistent violent felony offender. However, because the defendant'sclaim of ineffective assistance of counsel is based upon matter dehors the record, the defendant'sclaim is not properly before this Court on direct appeal (see People v Maldonado, 61AD3d 1220 [2009]; People v James, 269 AD2d 845, 846 [2000]; People vJuhans, 147 AD2d 658 [1989]). The defendant's claim may properly be reviewed only in thecontext of a postjudgment motion to vacate pursuant to CPL article 440 (see People vMaldonado, 61 AD3d at 1220; People v James, 269 AD2d at 846; People vJuhans, 147 AD2d at 658; see also People v Harris, 109 AD2d 351, 360 [1985]; CPL440.10 [1] [h]). Prudenti, P.J., Miller, Covello and Austin, JJ., concur.