Opinion
2014-08727 Ind. No. 5447/10
03-20-2019
The PEOPLE, etc., Respondent, v. Eduardo P. RODRIGUEZ, Appellant.
Janet E. Sabel, New York, N.Y. (Justine M. Luongo and Lorraine Maddalo of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Michael L. Brenner of counsel), for respondent.
Janet E. Sabel, New York, N.Y. (Justine M. Luongo and Lorraine Maddalo of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Michael L. Brenner of counsel), for respondent.
RUTH C. BALKIN, J.P. LEONARD B. AUSTIN SHERI S. ROMAN FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Elizabeth Foley, J.), rendered February 3, 2014, convicting him of burglary in the second degree, upon his plea of guilty, 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 (see People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (see People v. Hili, 158 A.D.3d 647, 648, 67 N.Y.S.3d 851 ). 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 (see People v. Hili, 158 A.D.3d at 648, 67 N.Y.S.3d 851 ; People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ).
BALKIN, J.P., AUSTIN, ROMAN and CONNOLLY, JJ., concur.