| People v Mentor |
| 2014 NY Slip Op 02456 [116 AD3d 793] |
| April 9, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Raymond Mentor, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andDiane R. Eisner of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, KingsCounty (Balter, J.), dated October 4, 2010, which, denied, without a hearing, his motion,in effect, pursuant to 440.10 to vacate a judgment of the same court (Broomer, J.)rendered May 23, 1990, convicting him of murder in the second degree, upon his plea ofguilty, and imposing sentence.
Ordered that the order is reversed, on the law, and, the matter is remitted to theSupreme Court, Kings County, for a determination of the defendant's motion on themerits.
A motion pursuant to CPL 440.10 to vacate a judgment of conviction must be deniedwhen, although sufficient facts appear on the record to have permitted adequate reviewof the issue raised upon the motion, no appellate review or determination occurred owingto the defendant's unjustifiable failure to take or perfect an appeal or to raise such issueupon an appeal actually perfected (CPL 440.10 [2] [c]). Since the basis for thedefendant's ineffective assistance of counsel claim included matters that do not appear onthe record, it cannot be said that sufficient facts appear on the record with respect to theground or issue raised upon the motion to have permitted adequate review thereof ondirect appeal (see CPL 440.10 [2] [c]). Accordingly, the Supreme Court erred indenying the defendant's motion as procedurally barred, without considering the merits ofthe defendant's claim (seePeople v Maxwell, 89 AD3d 1108 [2011]; see also People v Isaacs, 94 AD3d 1017 [2012]; People v Robert G., 85 AD3d1054 [2011]).
The Supreme Court did not err in not appointing counsel absent the defendant'srequest (see People ex rel. Williams v La Vallee, 19 NY2d 238, 240-241 [1967]).Upon remittitur, the court may appoint counsel "in the exercise of [its] sound discretion"(id. at 241). Skelos, J.P., Leventhal, Chambers and Maltese, JJ., concur.