| People v Freeman |
| 2012 NY Slip Op 02113 [93 AD3d 805] |
| March 20, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JasonFreeman, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.),rendered August 26, 2010, as amended September 2, 2010, convicting him of rape in the firstdegree (two counts), upon his plea of guilty, and imposing sentence.
Ordered that the judgment, as amended, is affirmed.
In People v Maxwell (89 AD3d1108 [2011]), this Court held that the defendant's claim of ineffective assistance of counsel,made on a motion pursuant to CPL 440.10 to vacate the judgment of conviction, was notprocedurally barred under CPL 440.10 (2) (b). The defendant's claim was based on severalallegations of ineffectiveness, some of which involved matter appearing on the record and someof which involved matter outside the record. This Court concluded that, since the claimconstituted a single, unified claim that must be viewed in totality, and was dependent, in part, onmatter outside the record, it could not be said that " 'sufficient facts appear on the record withrespect to the ground or issue raised upon the motion to permit adequate review thereof upon [thedefendant's direct appeal from the judgment of conviction]' " (People v Maxwell, 89AD3d at 1109, quoting CPL 440.10 [2] [b]).
On this direct appeal from a judgment of conviction, the defendant's claim that he wasdeprived of the effective assistance of counsel is based, in part, on matter appearing on the recordand, in part, on matter outside the record. Thus, like the defendant in People v Maxwell,the defendant in this case has presented a " 'mixed claim' " of ineffective assistance of counsel(People v Maxwell, 89 AD3d at 1109, quoting People v Evans, 16 NY3d 571, 575 n 2 [2011], cert denied565 US —, 132 S Ct 325 [2011]). Although reversal of a judgment of conviction isappropriate where it is evident from matter appearing on the record that the defendant wasdeprived of the constitutional right to the effective assistance of counsel (see People vCrump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]), that is not thecase here. In this case, in order to resolve the defendant's claim of ineffective assistance ofcounsel, this Court would be required to consider matter outside the record. Since the defendant'sclaim cannot be resolved without reference to matter outside the record, a CPL 440.10proceeding is the appropriate forum for reviewing the ineffective assistance claim in its [*2]entirety (see People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603,604 [2011]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Skelos, J.P., Angiolillo, Belen, Lott and Roman, JJ., concur.