Opinion
2021-06370 Ind. 1348/18
11-17-2021
The People of the State of New York, respondent, v. Charles Fells, appellant.
Thomas A. Kenniff, Mineola, NY, for appellant. Joyce A. Smith, Acting District Attorney, Mineola, NY (Jason R. Richards and John B. Latella of counsel), for respondent.
Thomas A. Kenniff, Mineola, NY, for appellant.
Joyce A. Smith, Acting District Attorney, Mineola, NY (Jason R. Richards and John B. Latella of counsel), for respondent.
REINALDO E. RIVERA, J.P., ANGELA G. IANNACCI, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Helene F. Gugerty, J.), rendered July 12, 2019, convicting him of assault in the second degree, criminal possession of a weapon in the fourth degree, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 A.D.3d 1108, 1109; see People v Evans, 16 N.Y.3d 571, 575 n 2). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v Freeman, 93 A.D.3d 805, 806; People v Maxwell, 89 A.D.3d at 1109).
The defendant failed to preserve for appellate review his contention that the sentence imposed improperly penalized him for exercising his right to a jury trial, because he did not set forth the issue on the record at the time of sentencing (see People v Hurley, 75 N.Y.2d 887, 888; People v Thompson, 119 A.D.3d 966, 968). In any event, this contention is without merit (see People v Cherry, 127 A.D.3d 879, 881; People v Romero, 101 A.D.3d 906, 907). Moreover, the sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).
RIVERA, J.P., IANNACCI, FORD and DOWLING, JJ., concur.