Opinion
570094/2015
10-30-2015
The People of the State of New York, Appellant, v. Patricia Samuels, Defendant-Respondent.
PRESENT: Shulman J.P., Ling-Cohan, J.
The People appeal from (1) an order of the Criminal Court of the City of New York, Bronx County (John H. Wilson, J.), dated June 16, 2014, which granted defendant's CPL §440.10 motion to vacate a judgment of the same court (Robert H. Straus, J.), rendered on September 11, 1987, convicting defendant, upon a plea of guilty, of criminal possession of marijuana in the fifth degree, and imposing sentence, and (2) an order of the same court (John H. Wilson, J.), dated September 30, 2014, which denied the People's motion for reargument.
Per Curiam.
Order (John H. Wilson, J.), dated June 16, 2014, reversed, on the law, judgment of conviction reinstated, and the matter remanded for further proceedings on the motion. Appeal from order (John H. Wilson, J.), dated September 30, 2014, dismissed as nonappealable.
Although defendant's CPL 440.10 motion was made on the ground of ineffective assistance of counsel, the court granted the motion solely on the basis of its sua sponte finding that the minutes of defendant's 1987 plea to criminal possession of marijuana in the fifth degree reflected an insufficient allocution. Since defendant did not appeal from her conviction, and since the defect in the plea allocution is an issue that appears on the record, collateral review of the sufficiency of the allocution is barred by CPL 440.10(2)(c) (see People v Acevedo, 104 AD3d 610 [2013], lv denied 21 NY3d 1001 [2013]). When the record is sufficient to permit review of an issue on direct appeal, a defendant who either has not appealed her conviction or, having appealed, has failed to raise that issue is barred from later asserting it as a basis for post-conviction relief (see People v Cuadrado, 9 NY3d 362 [2007]; cf. People v Grubstein, 24 NY3d 500 [2014]).
We remand for consideration of defendant's ineffective assistance claim, which the motion court did not reach.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur
Decision Date: October 30, 2015