| People v Wornell |
| 2013 NY Slip Op 08105 [112 AD3d 656] |
| December 4, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Justin Wornell, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County(Greller, J.), rendered March 8, 2012, convicting him of rape in the third degree, upon hisplea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's claim of ineffective assistance of counsel is based on matter dehorsthe record and, therefore, cannot be reviewed on direct appeal (see People v Nugent, 109AD3d 625 [2013]; People vMiller, 68 AD3d 1135 [2009]; People v Shemack, 46 AD3d 582, 583 [2007]). Thedefendant's related claim that the alleged ineffective assistance of counsel rendered hisplea unknowing, unintelligent, and involuntary is also based on matter dehors the recordand, thus, cannot be reviewed on direct appeal (see People v Morrison, 51 AD3d 1041 [2008]; People v DeLuca, 45 AD3d777 [2007]). Rivera, J.P., Hall, Roman and Miller, JJ., concur.[*2]
Motion by the respondent, inter alia, to strike stated portions of the record and theappellant's brief on an appeal from a judgment of the County Court, Dutchess County,rendered March 8, 2012, on the ground that the record contains matter dehors the recordand the brief refers to matter dehors the record. By decision and order on motion of thisCourt dated July 2, 2013, that branch of the motion which is to strike from the record theaffidavits on pages 59 through 62 of the record and those portions of the brief whichrefer to those affidavits was held in abeyance and referred to the panel of Justices hearingthe appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto,and upon the submission of the appeal, it is
Ordered that the branch of the motion which is to strike from the record the affidavitson pages 59 through 62 of the record and those portions of the brief which refer to thoseaffidavits is granted, and those portions of the record and the appellant's brief are strickenand have not been considered on the appeal (see People v DeLuca, 45 AD3d 777 [2007]). Rivera, J.P.,Hall, Roman and Miller, JJ., concur.