Opinion
207 185/08.
02-11-2016
The PEOPLE of the State of New York, Respondent, v. Juliette WARD, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Lisa A. Packard of counsel), for appellant. Thomas P. Zugibe, District Attorney, New City (Itamar J. Yeger of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Lisa A. Packard of counsel), for appellant.
Thomas P. Zugibe, District Attorney, New City (Itamar J. Yeger of counsel), for respondent.
Opinion
Judgment, Supreme Court, Rockland County (Thomas A. Breslin, J.), rendered November 15, 2012, convicting defendant, upon her guilty plea, of aggravated harassment in the second degree, and sentencing her to three years' probation, unanimously affirmed.
Defendant's claim that a special prosecutor should have been appointed is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal.
Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters outside, or not fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 1988; People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 1982 ). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 1998; see People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 1995 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 1984 ).
Defendant's challenge to former Penal Law § 240.30(1)(a), which has been declared unconstitutional (People v. Golb, 23 N.Y.3d 455, 466–468, 991 N.Y.S.2d 792, 15 N.E.3d 805 2014, cert. denied ––– U.S. ––––, 135 S.Ct. 1009, 190 L.Ed.2d 839 2015 ), is unpreserved (see e.g. People v. Scott, 126 A.D.3d 645, 646, 6 N.Y.S.3d 247 1st Dept.2015, lv. denied 25 N.Y.3d 1171, 15 N.Y.S.3d 302, 36 N.E.3d 105 2015 ), and we decline to vacate her bargained-for aggravated harassment conviction in the interest of justice.
RENWICK, J.P., RICHTER, MANZANET–DANIELS, KAPNICK, JJ., concur.