Summary
holding that defendant's claim of ineffective assistance of counsel, to extent that it was premised on his attorney's alleged failure to investigate and call potential alibi witnesses, involved matters which were dehors the record and were not properly presented on direct appeal
Summary of this case from Powers v. LordOpinion
November 17, 1997
Appeal from the Supreme Court, Queens County (Cooperman, J.).
Ordered that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that his arrest was not based upon probable cause because the reliability of the confidential informant was not proven at the suppression hearing ( see, CPL 470.05; People v. Volpe, 60 N.Y.2d 803, 804-805; People v. Jones, 81 A.D.2d 22, 29; see also, People v. Brown, 232 A.D.2d 168; People v. Howard, 162 A.D.2d 408, 409). In any event, the defendant's contention is without merit. Probable cause for the defendant's arrest was established by the photographic identification of him by the complainant as well as the statements of the informant ( see, People v. Nixon, 240 A.D.2d 794; People v. Hayes, 191 A.D.2d 644, 644-645; People v. Mitchell, 170 A.D.2d 542; People v. Green, 157 A.D.2d 745, 746).
The defendant's claim of ineffective assistance of counsel, to the extent that it is premised on his attorney's alleged failure to investigate and call potential alibi witnesses, involves matters which are dehors the record and are not properly presented on direct appeal ( see, e.g., People v. LeBrun, 234 A.D.2d 392 ; People v. Simon, 196 A.D.2d 851, 852; People v. Bagarozy, 182 A.D.2d 565, 566; People v. Clark, 175 A.D.2d 212; People v Williams, 145 A.D.2d 672, 673). The record otherwise fails to support the defendant's claim inasmuch as it demonstrates that trial counsel rendered meaningful representation to the defendant at all stages of the proceedings ( see, People v. Ellis, 81 N.Y.2d 854, 856; People v. Baldi, 54 N.Y.2d 137, 147).
The trial court properly denied the defendant's motion to set aside the verdict pursuant to CPL 330.30. To the extent that the defendant's motion sought reversal on "a ground appearing in the record" (CPL 330.30), the court properly denied the motion on the ground that the moving papers were legally insufficient ( see, CPL 330.40 [e] [i]). To the extent that the motion referred to matters outside the record, it is not cognizable on direct appeal.
The defendant's remaining contentions are either unpreserved for appellate review or without merit.
Rosenblatt, J. P., Copertino, Goldstein and Luciano, JJ., concur.