| People v Rohlehr |
| 2011 NY Slip Op 06240 [87 AD3d 603] |
| August 9, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DanaRohlehr, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy,and Allison Ageyeva of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.),rendered April 22, 2009, convicting him of burglary in the second degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that he is entitled to a new trial in light of newly discoveredevidence is based on matter dehors the record and, therefore, is not properly before this Court onthe defendant's direct appeal (see Peoplev Franklin, 77 AD3d 676 [2010]). Further, the Supreme Court providently exercised itsdiscretion in denying that branch of the defendant's motion which was to set aside the verdictpursuant to CPL 330.30 (3) based upon newly discovered evidence. The defendant failed todemonstrate in his motion papers that this new evidence could not have been produced at trialwith due diligence (see People v Matthew, 274 AD2d 485, 485-486 [2000]; People vHojas, 271 AD2d 547, 547-548 [2000]; People v Nelson, 214 AD2d 589, 590[1995]). To the extent the defendant also moved pursuant to CPL 330.30 (1) to set aside theverdict, that branch of the motion was also properly denied because the proffered grounds did notappear on the face of the record (see CPL 330.30 [1]).
The defendant's contention that he was deprived of the effective assistance of counsel isbased on matter dehors the record, and cannot be reviewed on direct appeal (see People v Miller, 68 AD3d1135 [2009]). "The appropriate vehicle . . . to allege ineffective assistance ofcounsel grounded in allegations referring to facts outside of the trial record is pursuant to CPL440.10, where matters dehors the record may be considered" (id. [internal quotationmarks omitted]). Skelos, J.P., Belen, Hall and Roman, JJ., concur.