People v. Direnzo

134 A.D.3d 850, 19 N.Y.S.3d 906

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 2015
• Docket: 2011-05137
• Status: Published

Opinion

Appeal by the defend ant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered May 3, 2011, convicting him of burglary in the second degree (three counts), petit larceny (three counts), and criminal possession of stolen property in the fifth degree (three counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that he was deprived of his 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. As such, it is a “mixed claim” (People v Freeman, 93 AD3d 805, 806 [2012]). Although reversal of a judgment of conviction is warranted when the on-the-record aspects of a mixed claim alone establish that the defendant was deprived of the effective assistance of counsel, here, the defendant’s claim is not determinable solely from on-the-record matter. Accordingly, it is appropriately raised and reviewed in its entirety through a motion to vacate the judgment pursuant to CPL 440.10 (see People v Freeman, 93 AD3d at 806; People v Maxwell, 89 AD3d 1108, 1109 [2011]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]), and the defendant’s remaining contention with respect to his sentence is without merit. Balkin, J.P., Austin, Sgroi and LaSalle, JJ., concur.