People v. Copeland

2017 NY Slip Op 1562, 148 A.D.3d 719, 48 N.Y.S.3d 710

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 2017
• Docket: 2015-12167
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered October 20, 2015, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s claim that he was deprived of the constitutional right to 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 AD3d 1108, 1109 [2011]). 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 Addison, 107 AD3d 730, 732 [2013]; cf. People v Crump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]). 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 Addison, 107 AD3d at 732; People v Freeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).

Mastro, J.P., Leventhal, Hall and Cohen, JJ., concur.