| People v Herrera |
| 2012 NY Slip Op 06820 [99 AD3d 813] |
| October 10, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Douglas Herrera, Also Known as Ronald Douglas Herrera-Castellanos,Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Carrie A. Ciganek of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Rockland County (Kelly, J.),rendered May 15, 2006, convicting him of murder in the first degree (seven counts), rape in thefirst degree, robbery in the first degree, burglary in the first degree, criminal sexual act in the firstdegree, aggravated sexual abuse in the first degree, and sexual abuse in the first degree (twocounts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's claim that he was deprived of the effective assistance of counsel is based, inpart, on matter appearing on the record and, in part, on matter outside the record, and thusconstitutes a " 'mixed claim[ ]' of ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109 [2011], quoting People v Evans, 16 NY3d 571,575 n 2 [2011], cert denied 565 US —, 132 S Ct 325 [2011]). In this case,it is not evident from the matter appearing on the record that the defendant was deprived of theeffective assistance of counsel (cf. People v Crump, 53 NY2d 824 [1981]; People vBrown, 45 NY2d 852 [1978]). Since the defendant's claim of ineffective assistance cannot beresolved without reference to matter outside the record, a CPL 440.10 proceeding is theappropriate forum for reviewing the claim in its entirety (see People v Freeman, 93 AD3d 805 [2012]; People vMaxwell, 89 AD3d at 1109; Peoplev Rohlehr, 87 AD3d 603, 604 [2011]).
The defendant's claim that counts six and seven of the indictment, which both charge himwith murder in the first degree while in the course of committing sexual abuse in the first degree,are multiplicitous, is unpreserved for appellate review (see People v Cruz, 96 NY2d 857,858 [2001]; People v Clymer, 26AD3d 443 [2006]; People v Aarons, 296 AD2d 508 [2002]; People v Webb,177 AD2d 524, 525 [1991]), and we decline to review it in the exercise of our interest of justicejurisdiction.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Angiolillo, J.P., Dickerson, Belen and Miller, JJ., concur.