| People v Acevedo |
| 2013 NY Slip Op 02143 [104 AD3d 610] |
| March 28, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Appellant, v Yudelka Acevedo, Respondent. |
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Steven Banks, The Legal Aid Society, New York (Paul Wiener of counsel), forrespondent.
Order, Supreme Court, Bronx County (Robert A. Sackett, J.), entered on or aboutSeptember 7, 2011, which granted defendant's CPL 440.10 motion to vacate a judgmentof conviction, unanimously reversed, on the law, the conviction reinstated, and the matterremanded for further proceedings on the motion.
Although defendant's CPL 440.10 motion was made on the ground of ineffectiveassistance of counsel, the court granted the motion solely on the basis of its sua spontefinding that the minutes of defendant's 2005 plea to falsifying business records in thesecond degree reflected an insufficient allocution. Since defendant did not appeal fromher conviction, and since the defect in the plea allocution is an issue that appears on therecord, collateral review of the sufficiency of the allocution is barred by CPL 440.10 (2)(c). In People v Cuadrado(9 NY3d 362, 365 [2007]), the Court of Appeals expressly declined to create anexception for "fundamental" or "jurisdictional" defects, and defendant's arguments forcollateral review in this regard are unavailing.
We remand for consideration of defendant's ineffective assistance claim, which themotion court did not reach. Concur—Tom, J.P., Acosta, Saxe, Freedman andFeinman, JJ.