Summary
finding that an ineffective assistance of counsel claim was inappropriate on direct appeal since it was based on facts not in the record and trial counsel had not had a chance to explain her trial tactics
Summary of this case from Hemstreet v. GreinerOpinion
October 29, 1998
Appeal from the Supreme Court, Bronx County (Dominic Massaro, J., at suppression hearing; Phylis Skloot Bamberger, J., at jury trial and sentence).
Since defendant failed to raise his contention of ineffective assistance of counsel in his motion to vacate the judgment of conviction pursuant to CPL 440.10, the claim is not reviewable on direct appeal since it is based on facts dehors the record and trial counsel has had no opportunity to explain her trial tactics ( People v. Love, 57 N.Y.2d 998). This is not the rare case where it might be possible from the trial record alone, without the benefit of a complete record adduced through a CPL 440.10 motion, to reject all legitimate explanations for counsel's failure to pursue a colorable suppression issue ( People v. Rivera, 71 N.Y.2d 705, 709). To the extent that the existing record permits review, we find that defendant received meaningful representation ( see, People v. Hobot, 84 N.Y.2d 1021, 1024).
Concur — Lerner, P. J., Milonas, Ellerin, Rubin and Williams, JJ.