Opinion
1304 KA 15–00358
12-20-2019
The PEOPLE of the State of New York, Respondent, v. Mario ALVERADO, Also Known as Mario Alverado–Mateo, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of rape in the first degree ( Penal Law § 130.35[1] ) and sodomy in the first degree (former § 130.50[1] ), defendant contends that he was denied effective assistance of counsel as a result of defense counsel's failure to make a motion to dismiss the indictment as time-barred (see CPL 30.10[2] [former (a) ], [b] ). The record on appeal, however, "is inadequate to enable us to determine whether such a motion would have been successful and whether defense counsel's failure to make that motion deprived defendant of meaningful representation" ( People v. Youngs, 101 A.D.3d 1589, 1589, 956 N.Y.S.2d 775 [4th Dept. 2012], lv denied 20 N.Y.3d 1105, 965 N.Y.S.2d 802, 988 N.E.2d 540 [2013] ). Thus, we conclude that "defendant's contention is appropriately raised by way of a motion pursuant to CPL article 440" ( id. ).