People v. Toland

267 A.D.2d 880, 700 N.Y.S.2d 764, 1999 N.Y. App. Div. LEXIS 13590

Opinion

—Mercure, J. P.

Appeal from an order of the County Court of Schenectady County (Eidens, J.), entered March 24, 1999, which settled the record on appeal.

We reject the contention that County Court erred in limiting the record on appeal to documents that were received in evidence or filed with the clerk in connection with this criminal action against defendant (see, People v Hoppe, 239 AD2d 777; People v Brown, 233 AD2d 764, 766, lv denied 89 NY2d 1009; Matter of Yanoff v Commissioner of Educ. of State of N. Y., 64 AD2d 763). A motion pursuant to CPL 440.10, and not a direct appeal, is the appropriate vehicle for presenting a claim of ineffective assistance of counsel based upon matters that are outside the record (see, People v Nusbaum, 222 AD2d 723, 725, lv denied 87 NY2d 1023; People v Garcia, 187 AD2d 868, lv denied 81 NY2d 885). We modify County Court’s order only to the extent of correcting its inadvertent omission of the presentence report and statement pursuant to CPLR 5531, which the People concede are properly includable in the record on appeal.

Crew III, Spain, Carpinello and Mugglin, JJ., concur. Ordered that the order is modified, on the law, by providing for inclusion of the statement pursuant to CPLR 5531 in the record on appeal and the filing of the presentence investigation report with the clerk of this Court, and, as so modified, affirmed.