Opinion
2009–05459 Ind. No. 1917/08
02-20-2019
The PEOPLE, etc., Respondent, v. Mark LAW, Appellant.
Peter A. Sell, Waccabuc, N.Y., for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Kevin C. King of counsel), for respondent.
Peter A. Sell, Waccabuc, N.Y., for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Kevin C. King of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., ROBERT J. MILLER, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Meryl J. Berkowitz, J.), rendered April 27, 2009, convicting him of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree, and criminal possession of a controlled substance in the seventh degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that he was deprived of the constitutional right to the effective assistance of counsel, which affected the voluntariness of his plea. His argument is based, in part, on matter appearing on the record and, in part, on matter outside of the record, and, thus, constitutes a mixed claim of ineffective assistance (see People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ). Since the defendant's claim of ineffective assistance cannot be resolved without reference to matter outside of the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Freeman, 93 A.D.3d at 806, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
SCHEINKMAN, P.J., MILLER, BARROS and BRATHWAITE NELSON, JJ., concur.