N.Y. Crim. Proc. Law § 440.10

Claims based on facts outside the existing record must be raised in a CPL § 440.10 motion.

Morrow v. Capra · filed 2023-01-27

Although the petitioner raised these arguments on direct appeal, he did not raise them in a CPL § 440.10 motion, which is the required procedure for raising claims that are based on facts outside the existing record.

Section 440.10 requires courts to consider all ineffective assistance claims in a motion to vacate, whether the claims are based on the record or on matters outside it.

People v. Gonyea · filed 2022-12-01(2)(b) and (c)

Turning to defendant's postconviction motion, the People concede, and we agree, that an amendment to CPL 440.10 made effective prior to County Court's determination on the motion required it to consider the entirety of defendant's claims directed toward the ineffective assistance of counsel, regardless of whether such claims were record based or concerned matters outside of the record ( see L 2021, ch 501).

A CPL 440.10 proceeding is the appropriate forum for reviewing an ineffective assistance claim that cannot be resolved without matter outside the record.

People v. Street · filed 2023-01-11

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, and we decline to review the claim on this direct appeal ( see People v Rizzo , 195 AD3d 1045, 1047; People v Freeman , 93 AD3d 805, 806).

Section 440.10 provides the motion needed to seek review of ineffective-assistance claims that depend on matters outside the direct-appeal record.

People v. Guzman · filed 2023-01-31

Defendant's ineffective assistance of counsel claims are not reviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record, including matters of strategy ( see People v Rivera , 71 NY2d 705, 709 [1988]; People v Love , 57 NY2d 998 [1982]). Accordingly, because defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on [*2]appeal.

Mixed ineffective-assistance claims based on facts both in and outside the record may be reviewed in their entirety on appeal from the denial of a CPL 440.10 motion.

People v. Hatcher · filed 2022-12-15

Inasmuch as "defendant's mixed claims of ineffective assistance of counsel are premised on both record-based and nonrecord-based allegations, they are properly reviewed in their entirety on defendant's appeal from the denial of his CPL 440.10 motion" ( People v Goodwalt[*3] , 205 AD3d 1070, 1073 [3d Dept 2022], lv denied 38 NY3d 1071 [2022]; see People v Fish , 208 AD3d 1546, 1548 [3d Dept 2022]).

Section 440.10 provides a way to raise a claim about counsel’s advice on a potential defense when the direct appeal record cannot establish what counsel discussed with the defendant.

People v. Thornton · filed 2023-02-10

Although there is evidence in the record upon which a duress defense could have been pursued at trial had defendant not elected to plead guilty, there is no basis for us to conclude that defendant was unaware of that potential affirmative defense when he pleaded guilty or that his prior [*2]attorney failed to consult with him about the defense. Thus, defendant's contention must be raised, if at all, in a motion pursuant to CPL 440.10 ( see People v Saunders , 209 AD3d 1292, 1293 [4th Dept 2022]; People v Defio , 200 AD3d 1672, 1674 [4th Dept 2021], lv denied 38 NY3d 949 [2022]; People v Timmons , 151 AD3d 1682, 1684 [4th Dept 2017], lv denied 30 NY3d 984 [2017]).

A CPL 440.10 motion is needed before an appellate court can review ineffective assistance claims that depend on matters outside the trial record.

People v. Mason · filed 2023-02-16

Therefore, because this defendant has not made a CPL 440.10 motion, the merits of these claims may not be addressed on appeal. Defendant Mason's ineffective assistance claims are likewise unreviewable in the absence of a CPL 440.10 motion.

Section 440.10 provides a motion procedure for ineffective assistance claims that depend on matters outside the direct appeal record.

People v. Jenkins · filed 2023-03-16

Defendant's related ineffective assistance of counsel claims, based on counsel's alleged failure to consult with him, raise certain arguments, and pursue particular strategies, are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record ( see People v Rivera , 71 NY2d 705, 709 [1988]). Accordingly, because defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal.

Section 440.10 provides the appropriate forum for reviewing an ineffective assistance claim that depends on matters outside the appellate record.

People v. Jones · filed 2023-03-17

The record on appeal, however, contains neither the search warrant nor the search warrant application and, as a result, the claim of ineffective assistance of counsel cannot be resolved without reference to matters outside of the record. Therefore, "a CPL 440.10 proceeding is the appropriate forum for reviewing the . . . claim" ( People v Barzee , 204 AD3d 1422, 1423 [4th Dept 2022], lv denied 38 NY3d 1132 [2022] [internal quotation marks omitted]; see People v Green , 196 AD3d 1148, 1150 [4th Dept 2021], lv denied 37 NY3d 1096 [2021], reconsideration denied 37 NY3d 1161 [2022]; see also People v Gianni , 94 AD3d 1477, 1477 [4th Dept 2012], lv denied 19 NY3d 973 [2012]).

Section 440.10 provides the forum for reviewing an ineffective-assistance claim that requires evidence outside the trial record.

People v. Llanos · filed 2023-04-05

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, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 provides the motion procedure for an ineffective-assistance claim about immigration advice when resolving the claim requires facts outside the direct-appeal record.

People v. Pereira (Eduardo) · filed 2023-04-13

Defendant's claim that counsel provided ineffective assistance regarding the immigration consequences of the plea ( see Padilla v Kentucky , 559 US 356 [2010]) is unreviewable on direct appeal because it involves matters not reflected in the record regarding the full extent of counsel's immigration advice, and thus requires a CPL 440.10 motion ( see People v Pastor , 28 NY3d 1089, 1091 [2016]; People v Mann , 175 AD3d 1204 [2019], lv denied 34 NY3d 1017 [2019]).

CPL 440.10 provides the motion procedure for ineffective-assistance claims that depend on facts outside the record on direct appeal.

People v. Howden · filed 2023-04-28

That claim involves strategic discussions between defendant and defense counsel outside the record on appeal, and it must therefore be raised by way of a motion pursuant to CPL 440.10 ( see People v Manning , 151 AD3d 1936, 1938 [4th Dept 2017], lv denied 30 NY3d 951 [2017]; People v Mangiarella , 128 AD3d 1418, 1418 [4th Dept 2015]).

Section 440.10 provides a post-trial motion to review a right-to-counsel claim when the claimed violation is not clear from the record on direct appeal.

People v. Austin · filed 2023-03-17

Here, because "the record does not make clear, irrefutably, that a right to counsel violation has occurred, the claimed violation can be reviewed only on a post-trial motion under CPL 440.10, not on direct appeal" ( id. ).

CPL 440.10 is the appropriate forum for reviewing an ineffective-assistance claim in its entirety when resolving it requires matter outside the trial record.

People v. Brown · filed 2023-06-07

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, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 provides the forum for reviewing an ineffective-assistance claim in its entirety when the claim requires material outside the record.

People v. Jones · filed 2023-06-21

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, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 provides the motion procedure for ineffective assistance claims that depend on evidence both in and outside the trial record.

Murray v. Cunningham · filed 2023-07-20

Under New York state law, mixed claims of ineffective assistance of counsel -- that is, claims that turn on evidence both on and off the record -- must proceed under a separate CPL § 440.10 motion.

CPL 440.10 is the procedure for raising ineffective assistance claims that depend on matters outside the appellate record.

People v. Chavis · filed 2023-07-28

Defendant's contention that he was denied effective assistance of counsel because defense counsel did not advise him of the possibility of participation in the judicial diversion program or inform him of the maximum sentence he was facing relies on matters outside the record and must therefore be raised by motion pursuant to CPL 440.10 ( see People v Barber , 192 AD3d 1679, 1680 [4th Dept 2021], lv denied 37 NY3d 953 [2021]; People v Manning , 151 AD3d 1936, 1938 [4th Dept 2017], lv denied 30 NY3d 951 [2017]).

Section 440.10 provides the forum for reviewing an ineffective-assistance claim that cannot be resolved without evidence outside the record.

People v. Coad · filed 2023-05-24

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, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim that requires consideration of matters outside the trial record.

People v. Decoteau · filed 2023-10-04

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, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 provides the procedure for raising a claim, based primarily on matters outside the trial record, that defense counsel deprived a defendant of the right to testify.

People v. Ferry · filed 2023-10-06

To the extent that defendant relatedly contends that defense counsel deprived him of his right to testify, that contention is based primarily on matters outside the record and must be raised in a motion pursuant to CPL 440.10 ( see Richards , 177 AD3d at 1282; see generally People v Mirabella , 187 AD3d 1589, 1589-1590 [4th Dept 2020], lv dismissed 36 NY3d 930 [2020]).

Section 440.10 provides the appropriate forum for reviewing claims that depend on matters outside the appellate record.

People v. Brennan · filed 2023-10-06

To the extent that defendant's contention involves matters outside the record, "a CPL 440.10 proceeding is the appropriate forum for review of the . . . claim" ( People v Barzee , 204 AD3d 1422, 1423 [4th Dept 2022], lv denied 38 NY3d 1132 [2022] [internal quotation marks omitted]; see People v Jones , 214 AD3d 1410, 1411 [4th Dept 2023]).

CPL 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim in its entirety when the claim cannot be resolved without evidence outside the trial record.

People v. Case · filed 2023-11-08

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, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805; People v Maxwell , 89 AD3d at 1109).

Section 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim that cannot be resolved without matters outside the record.

People v. Delgado · filed 2023-11-22

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 [*3]proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

CPL 440.10 is the appropriate forum for reviewing an ineffective assistance claim that requires consideration of matters outside the record.

People v. Spring · filed 2023-12-06

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, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805; People v Maxwell , 89 AD3d at 1108).

Section 440.10 provides the motion procedure for claims that depend on matters outside the trial record.

People v. Hoover (Deirdre) · filed 2023-12-07

Defendant's remaining contentions either lack merit or, because they are based on matters outside the record, would need to be raised in a motion pursuant to CPL 440.10.

Section 440.10 provides a motion procedure for ineffective assistance claims involving matters outside the direct appeal record.

People v. Murray · filed 2023-12-14

Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal, as they involve matters outside the record, including matters of strategy ( see People v Rivera , 71 NY2d 705, 709 [1988]; People v Love , 57 NY2d 998 [1982]). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed.

CPL 440.10 provides the procedure for challenging the voluntariness of a guilty plea based on matters outside the appellate record.

People v. Latone · filed 2023-12-22

To the extent that defendant's challenge to the voluntariness of her plea is based on matters outside the record on appeal, her contention must be raised by way of a motion to vacate the judgment pursuant to CPL 440.10 ( see People v Smith , 214 AD3d 1339, 1339 [4th Dept 2023], lv denied 39 NY3d 1157 [2023]; People v Sheppard , 149 AD3d 1569, 1569 [4th Dept 2017], lv denied 29 NY3d 1133 [2017]).

CPL 440.10 provides the procedure for raising an ineffective-assistance claim that depends on matters outside the direct appeal record.

People v. Holder · filed 2024-02-15

Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claim is unreviewable on direct appeal because it involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion ( see People v Gomez , 186 AD3d 422, 423-424 [1st Dept 2020]).

CPL 440.10 provides the procedure for raising an ineffective-assistance claim that depends on matters outside the direct-appeal record.

People v. Khan · filed 2024-03-26

Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claim is unreviewable on direct appeal because it involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion ( see People v Gomez , 186 AD3d 422, 423-424 [1st Dept 2020]).

CPL 440.10 provides the procedure for raising an ineffective assistance claim that depends on matters outside the direct appeal record.

People v. Jackson · filed 2024-03-26

Defendant's contention that we should address his claim because his counsel rendered ineffective assistance in failing to raise it is unreviewable on direct appeal because it involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion ( see People v Gomez , 186 AD3d 422, 423-424 [1st Dept 2020]).

Section 440.10 provides the appropriate forum to review an ineffective-assistance claim in its entirety when the claim requires evidence outside the trial record.

People v. Irving · filed 2024-04-03

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, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 provides the appropriate forum for reviewing an ineffective assistance claim that requires consideration of matters outside the record.

People v. Edwards · filed 2024-01-24

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, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 provides the motion procedure for an ineffective-assistance claim that depends on matters outside the appellate record.

People v. Scott · filed 2024-02-02

Defendant's contention that he was denied effective assistance of counsel because defense counsel declined the court's offer to call the probation officer to testify prior to sentencing relies on matters outside the record on appeal and must therefore be raised by motion pursuant to CPL 440.10 ( see People v Spencer , 185 AD3d 1440, 1442 [4th Dept 2020]; People v Manning , 151 AD3d 1936, 1938 [4th Dept 2017], lv denied 30 NY3d 951 [2017]; People v Mangiarella , 128 AD3d 1418, 1418 [4th Dept 2015]).

Section 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim based on matters outside the trial record.

People v. Rojas-Aponte · filed 2024-02-02

To the extent that defendant's claim of ineffective assistance of counsel is based on matters outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim ( see generally People v Parnell , 221 AD3d 1437, 1438 [4th Dept 2023]).

Section 440.10 is the procedure for raising an ineffective-assistance claim based partly on facts outside the trial record.

People v. Renner (Yon) · filed 2024-02-08

As defendant's complaint concerning counsel's effectiveness is partially predicated on factors outside the record, such claim must be raised via a CPL 440.10 motion.

Section 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim that cannot be resolved without matters outside the record.

People v. Rodriguez · filed 2024-02-14

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, and we decline to review the claim on this direct appeal ( see People v Farrow , 216 AD3d 996, 999; People v Yancey , 204 AD3d 1044, 1045).

Section 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim in its entirety when the claim requires consideration of matters outside the record.

People v. Cherry · filed 2024-04-10

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, and we decline to review the claim on this direct appeal ( see People v Rodriguez , 224 AD3d 783; People v Freeman , 93 AD3d 805, 806).

Section 440.10 is the procedure for raising an ineffective-assistance claim that depends on matters outside the direct-appeal record.

People v. Liriano · filed 2024-04-16

Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claim is unreviewable on direct appeal because it [*2]involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion ( see People v Holder , 224 AD3d 513 [1st Dept 2024]; see also People v Maffei , 35 NY3d 264, 269-270 [2020]).

Section 440.10 provides a motion procedure for raising an ineffective-assistance claim based on matters outside the appellate record.

People v. Lewis · filed 2024-06-14

Because the record on appeal does not reflect whether defense counsel informed defendant of that right, defendant's contention "is based on matters outside the record and thus must be raised by way of a motion pursuant to CPL 440.10" ( People v Gaston , 100 AD3d 1463, 1466 [4th Dept 2012]; cf. People v Mobley , 309 AD2d 605, 605 [1st Dept 2003], lv denied 1 NY3d 599 [2004]).

Section 440.10 provides the procedure for raising a claim about counsel that depends on facts outside the appellate record, such as counsel's strategy, advice, or preparation.

People v. Manzo (Rachel) · filed 2024-06-14

To the extent that defendant's complaint about counsel is predicated on factors that do not appear on the face of the record, such as counsel's strategy, advice or preparation, defendant must raise her claim via a CPL 440.10 motion ( see People v Peque , 22 NY3d 168, 202 [2013]; People v Haffiz , 19 NY3d 883, 885 [2012]; People v McLean , 15 NY3d 117, 121 [2010]; People v Denny , 95 NY2d 921, 923 [2000]; People v Sun , 74 Misc 3d 136[A], 2022 NY Slip Op 50297[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).

Section 440.10 provides a way to raise an ineffective-assistance claim that depends on matters outside the direct appeal record.

People v. Velardo · filed 2024-06-18

Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claim is unreviewable on direct appeal because it involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion ( see People v Holder , 224 AD3d 513, 514 [1st Dept 2024]).

CPL 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim that cannot be resolved without matters outside the record.

People v. Statini · filed 2024-06-26

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, and we decline to review the claim on this direct appeal ( see People v Olmos , 199 AD3d 711, 711-712; People v Maxwell , 89 AD3d at 1109).

Section 440.10 provides a forum for reviewing ineffective-assistance claims based on matters outside the record.

People v. Dunn · filed 2024-07-26

Moreover, to the extent that defendant's contentions are based on matters outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claims ( see generally People v Sims , 41 NY3d 995, 996 [2024]; Rojas-Aponte , 224 AD3d at 1265; People v Parnell , 221 AD3d 1437, 1438 [4th Dept 2023], lv denied 40 NY3d 1094 [2024]).

Section 440.10 provides the forum for reviewing an ineffective assistance claim that requires consideration of matter outside the record.

People v. Patton · filed 2024-07-31

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, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 provides the motion procedure for ineffective-assistance claims that depend on matters outside the direct-appeal record.

People v. Allen · filed 2024-09-26

Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal because it involves matters not reflected in or fully explained by the record, which may not be addressed on appeal in the absence of a CPL 440.10 motion ( see People v Maffei , 35 NY3d 264, 269-270 [2020]).

Section 440.10 provides a proceeding for claims of ineffective assistance that must be proved with facts outside the trial record.

People v. Hufnagle · filed 2024-09-27

Defendant's argument that defense counsel should have requested an adjournment to ensure that defendant's participation in the proceedings—including, inter alia, his decision to forgo a plea and his waiver of a jury trial—were knowing and voluntary " 'implicates his relationship with his trial attorney and is to be proved, if at all, by facts outside the trial record in a proceeding maintainable under CPL 440.10' " ( People v Magnano , 158 AD2d 979, 979 [4th Dept 1990], affd 77 NY2d 941 [1991]; see People v Dallas , 119 AD3d 1362, 1364 [4th Dept 2014], lv denied 24 NY3d 1083 [2014]).

Section 440.10 provides the motion procedure for raising an ineffective-assistance claim that depends on matters outside the direct appeal record.

People v. Martinez · filed 2024-10-03

Defendant's contention that defense counsel was ineffective for failing to move for dismissal of the indictment on Second Amendment grounds "is unreviewable on direct appeal because it involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion" ( People v Slade , 228 AD3d 439, 439 [1st Dept 2024]).

Section 440.10 provides a motion procedure for ineffective assistance claims involving matters not fully explained by the direct appeal record.

People v. Perry · filed 2024-10-08

Defendant's ineffective assistance claim is unreviewable on direct appeal, as it involves matters not fully explained by the record. Thus, the claim should be raised by way of a CPL 440.10 motion ( see People v Peyrefitte, 210 AD3d 438, 438 [1st Dept 2022]).

Section 440.10 provides a motion procedure for ineffective assistance claims involving matters not fully explained by the direct appeal record.

People v. Gerson · filed 2024-10-08

Defendant's ineffective assistance claim is unreviewable on direct appeal, as it involves matters not fully explained by the record. Thus, the claim should be raised by way of a CPL 440.10 motion ( see People v Peyrefitte, 210 AD3d 438, 438 [1st Dept 2022]).

Section 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim in its entirety when resolving it requires matter outside the trial record.

People v. Sirleaf · filed 2024-10-16

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, and we decline to review the claim on this direct appeal ( see People v Rodriguez , 224 AD3d 783; People v Freeman , 93 AD3d 805, 806).

Section 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim that requires consideration of matters outside the trial record.

People v. Orama · filed 2024-11-06

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, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

CPL 440.10 provides the forum for reviewing an ineffective-assistance claim in its entirety when resolving it requires matters outside the record.

People v. Ponce · filed 2024-11-13

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, and we decline to review the claim on these direct appeals ( see People v Cherry , 226 AD3d 822, 823; People v Rodriguez , 224 AD3d 783, 785).

CPL 440.10 provides the appropriate forum for reviewing claims based on matters outside the appellate record.

People v. Stoby · filed 2024-11-15

Moreover, to the extent that defendant's contentions are based on matters outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claims ( see Dunn , 229 AD3d at 1223; see generally People v Sims , 41 NY3d 995, 996 [2024]; Rojas-Aponte , 224 AD3d at 1265).

Section 440.10 provides the appropriate forum for reviewing ineffective assistance claims based on matters outside the trial record.

People v. Myles · filed 2024-11-15

Third, to the extent that defendant's contention regarding communication issues with defendant is based on matters outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claims ( see generally People v Sims , 41 NY3d 995, 996 [2024]; People v Rojas-Aponte , 224 AD3d 1264, 1265 [4th Dept 2024]).

Section 440.10 provides the motion procedure for ineffective-assistance claims that depend on matters outside the direct-appeal record.

People v. Rivera · filed 2024-12-17

Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claim is unreviewable on direct appeal because it involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion ( see People v Gomez , 186 AD3d 422, 423-424 [1st Dept 2020]).

CPL 440.10 requires an ineffective-assistance claim based primarily on matters outside the record to be raised by motion to vacate the judgment.

People v. Morse · filed 2024-12-20

Defendant's contention that his previous counsel was ineffective in failing to show him the electronically recorded material is based primarily on matters outside the record and must be raised pursuant to a CPL 440.10 motion ( see generally People v Streeter , 118 AD3d 1287, 1289 [4th Dept 2014], lv denied 23 NY3d 1068 [2014], reconsideration denied 24 NY3d 1047 [2014]).

CPL 440.10 is the procedure for raising an ineffective-assistance claim that depends on matters outside the direct-appeal record.

People v. DeJesus · filed 2024-12-31

Additionally, defendant's claim that his counsel was ineffective for failing to move to dismiss the indictment on Second Amendment grounds is unreviewable on direct appeal because it involves matters not reflected in the record and thus must be raised in a CPL 440.10 motion ( see People v Holder , 224 AD3d 513, 514 [1st Dept 2024], lv denied 41 NY3d 1018 [2024]).

Section 440.10 provides the motion procedure for an ineffective-assistance claim that depends on matters outside the direct appeal record.

People v. Santos · filed 2024-12-31

Defendant's claim that his initial attorney rendered ineffective assistance by waiving defendant's right to testify before the grand jury against his wishes, without consulting him, at a time when a breakdown in the attorney-client relationship had arisen, is unreviewable in the absence of a CPL 440.10 motion, and because it involves matters not reflected in, or fully explained by the record on direct appeal ( see People v McLean , 15 NY3d 117, 121 [2010] ; People v Gomez , 186 AD3d 422, 423 [1st Dept 2020]; People v Maffei , 35 NY3d 264, 269 [2020]); People v Irick , 203 AD3d 517, 518-519 [1st Dept 2022], lv denied 38 NY3d 1033 [2022], cert denied sub nom Irick v New York , — US &mdash, 143 S Ct 357 [2022]).

Section 440.10 does not permit denial on the ground that a claim can be reviewed on direct appeal when the claim depends on facts outside the record.

People v. Roque · filed 2025-01-09(2)(b)

Preliminarily, we agree with defendant that County Court erred in denying the motion without a hearing on the ground that sufficient facts appeared on the record to permit review of the issue on direct appeal ( see People v Bailey , 232 AD3d at 1036; People v Rubadue , 222 AD3d 1266, 1270 [3d Dept 2023]). While the arguments underlying defendant's ineffective assistance of counsel claim in his CPL 440.10 motion largely mirror those raised as part of his motion to withdraw his plea, these arguments were based upon facts outside of the record in the first instance, and at no time did the court inquire into these claims on the record.

CPL 440.10 is the vehicle for an ineffective-assistance claim that depends on matters outside the direct-appeal record.

People v. Kamara · filed 2025-01-09

Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claim is unreviewable on direct appeal because it involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion ( People v Holder , 224 AD3d 513, 514 [1st Dept 2024], lv denied 41 NY3d 1018 [2024]).

Section 440.10 provides the motion procedure for an ineffective-assistance claim that depends on matters outside the direct-appeal record.

People v. Anderson · filed 2025-01-23

Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claim is unreviewable on direct appeal because it involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion ( see People v Rivera , _ AD3d _ , 2024 NY Slip Op 06308 [1st Dept 2024], citing People v Gomez , 186 AD3d 422, 423—424 [1st Dept 2020]).

Section 440.10 provides the appropriate forum for reviewing an ineffective assistance claim that requires consideration of matters outside the trial record.

People v. Finley · filed 2025-02-05

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, and we decline to review the claim on this direct appeal ( see People v Dunaway , 207 AD3d at 744; People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 provides the motion procedure for raising a claim of prejudice based on evidence outside the appellate record.

People v. Williams · filed 2025-02-07

To the extent that defendant contends that prejudice may be established with evidence outside this record, the contention must be raised pursuant to a CPL 440.10 motion ( see generally People v Streeter , 118 AD3d 1287, 1289 [4th Dept 2014], lv denied 23 NY3d 1068 [2014], reconsideration denied 24 NY3d 1047 [2014]).

Section 440.10 provides the motion procedure for raising an ineffective-assistance claim based on matters outside the record on appeal.

People v. Nesmith · filed 2025-02-07

In addition, to the extent that defendant's contention is based on matters outside the record on appeal, it must be raised by way of motion pursuant to CPL 440.10 ( see People v Dunn , 229 AD3d 1220, 1223 [4th Dept 2024]; Lewis , 228 AD3d at 1248).

A CPL 440.10 proceeding is the appropriate forum for reviewing an ineffective assistance claim that requires evidence outside the direct appeal record.

People v. De La O Achiardi · filed 2025-02-13

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, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 provides a motion procedure for ineffective-assistance claims involving matters outside the direct-appeal record.

People v. Gulley · filed 2025-02-18

Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claim is unreviewable on direct appeal because it involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion ( see People v Holder , 224 AD3d 513, 514 [1st Dept 2024], lv denied 41 NY3d 1018 [2024]).

CPL 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim in its entirety when resolving it requires matter outside the record.

People v. Campos · filed 2025-03-12

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, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

A claim of ineffective assistance that depends on matters outside the appellate record must be raised in a CPL 440.10 motion.

People v. McKnight · filed 2025-03-21

Defendant's contention concerns matters outside the record on appeal and must be raised in a motion pursuant to CPL 440.10 ( see People v Keane , 221 AD3d 1586, 1588-1589 [4th Dept 2023]; People v Howden , 215 AD3d 1261, 1262 [4th Dept 2023], lv denied 40 NY3d 1092 [2024]; see also People v Defio , 200 AD3d 1672, 1674 [4th Dept 2021], lv denied 38 NY3d 949 [2022]).

CPL 440.10 provides the forum for reviewing an ineffective-assistance claim that cannot be resolved without matters outside the record.

People v. Moron · filed 2025-04-16

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, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 provides a motion procedure for ineffective assistance claims that depend on matters outside the direct appeal record.

People v. Guzman · filed 2025-04-17

Defendant's contention that he received ineffective assistance of counsel as a result of his counsel failing to preserve his Second Amendment claim is unreviewable on direct appeal because it involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion ( see People v Velardo , 228 AD3d at 521).

CPL 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim that cannot be resolved without evidence outside the trial record.

People v. Heggs · filed 2025-04-23

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, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 is the procedure for raising an ineffective assistance claim based on facts that do not appear in the record.

People v. Verin · filed 2025-04-25

Nevertheless, defendant's contention "is predicated on factors such as [defense] counsel's strategy, advice, or preparation that do not appear on the face of the record, [and thus] defendant must raise his [contention] via a CPL 440.10 motion" ( People v Peque , 22 NY3d 168, 202 [2013]; see generally People v Goodwin , 159 AD3d 1433, 1435 [4th Dept 2018]).

A CPL 440.10 proceeding is the appropriate forum for reviewing an ineffective-assistance claim in its entirety when the claim requires facts outside the trial record.

People v. Kellam · filed 2025-04-25

We conclude that, because "the 'claim of ineffective assistance of counsel cannot be resolved without reference to matter outside of the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the [mixed] claim in its entirety' " ( People v Wilson [appeal No. 2], 162 AD3d 1591, 1592 [4th Dept 2018]; see People v Kellam [appeal No. 2], — AD3d — [Apr. 25, 2025] [4th Dept 2025] [decided herewith]; see also People v Franklin , 206 AD3d 1610, 1611-1612 [4th Dept 2022], lv denied 38 NY3d 1150 [2022]).

CPL 440.10 provides the procedure for raising an ineffective-assistance claim that depends on matters outside the record on direct appeal.

People v. Berkley · filed 2025-05-08

This claim is not reviewable on direct appeal because "it involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion" ( People v Holder , 224 AD3d 513, 514 [1st Dept 2024], lv denied 41 NY3d 1018 [2024]).

Section 440.10 provides the motion procedure for ineffective-assistance claims involving matters outside the direct-appeal record.

People v. Tarazona · filed 2025-05-29

Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claim is unreviewable on direct appeal because it involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion ( see People v Anderson , 234 AD3d 603, 604 [1st Dept 2025], lv denied 43 NY3d 943 [2025]).

Section 440.10 provides a motion procedure for ineffective-assistance claims that rely on matters outside the record on appeal.

People v. Ross · filed 2025-06-06

To the extent that defendant relies on matters outside the record on appeal in contending that defense counsel was ineffective in failing to investigate those defenses, the appropriate vehicle for defendant's contention is a motion pursuant to CPL 440.10 ( see People v Parnell , 221 AD3d 1437, 1438 [4th Dept 2023], lv denied 40 NY3d 1094 [2024]; People v Russell , 83 AD3d 1463, 1465 [4th Dept 2011], lv denied 17 NY3d 800 [2011]).

Section 440.10 provides the motion procedure for ineffective-assistance claims based on matters outside the appellate record.

People v. Ritchie · filed 2025-06-06

That contention is based on matters outside the record on appeal and therefore must be raised by way of a motion pursuant to CPL 440.10 ( see People v Nicholson , 118 AD3d 1423, 1425 [4th Dept 2014], affd 26 NY3d 813 [2016]; People v Nesmith , 235 AD3d 1239, 1240 [4th Dept 2025], lv denied — NY3d — [2025]; People v Morse , 233 AD3d 1470, 1471 [4th Dept 2024]).

Section 440.10 provides the motion procedure for an ineffective-assistance claim that depends on matters outside the appellate record.

People v. Richards · filed 2025-06-06

To the extent that defendant contends that defense counsel misadvised defendant to take the pre-indictment plea offer in lieu of pursuing a suppression motion, such contention involves matters outside the record on appeal and must be raised in a motion pursuant to CPL 440.10 ( see People v Dunn , 229 AD3d 1220, 1223 [4th Dept 2024]).

CPL 440.10 is the appropriate forum for reviewing an ineffective-assistance claim that requires consideration of matters outside the record.

People v. Samaroo · filed 2025-06-18

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, and we decline to review the claim on this direct appeal ( see People v Brissett , 196 AD3d 642, 642; People v Maxwell , 89 AD3d at 1109).

CPL 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim that requires consideration of matters outside the record.

People v. Hufcut · filed 2025-06-18

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, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 provides the motion procedure for an ineffective-assistance claim that depends on matters outside the direct-appeal record.

People v. Cabrera · filed 2025-06-26

Defendant's contention that his counsel rendered ineffective assistance in failing to raise his Second Amendment challenge is unreviewable on direct appeal because it involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion ( see People v Gomez , 186 AD3d 422, 423-424 [1st Dept 2020]; see also Khan , 225 AD3d at 552-553).

CPL 440.10 provides a motion procedure for raising ineffective-assistance claims that depend on matters outside the appellate record.

People v. Rhynes · filed 2025-06-27

Defendant's contention that he was not provided with certain discovery materials or that defense counsel did not communicate with him enough to prepare for trial involves matters outside the record on appeal and must be raised by way of motion pursuant to CPL 440.10 ( see People v Fox , 124 AD3d 1252, 1253 [4th Dept 2015]).

Section 440.10 provides the forum for reviewing an ineffective-assistance claim that requires facts outside the trial record.

People v. Owens · filed 2025-07-09

Since the defendant's claim of ineffective assistance of counsel regarding defense counsel's failure to present scientific evidence at trial to show that the gun fired by the defendant contained a manufacturing defect rendering it prone to accidental discharge 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 Picart , 171 AD3d 799, 801).

Section 440.10 provides the appropriate forum for an ineffective assistance claim that depends on matters outside the record.

People v. Peterson · filed 2025-07-25

We conclude, however, that defendant's contention is based on matters outside the record, and thus "a CPL 440.10 proceeding is the appropriate forum for reviewing [defendant's] claim[ ]" ( People v Dunn , 229 AD3d 1220, 1223 [4th Dept 2024]; see People v Stoby , 232 AD3d 1298, 1299 [4th Dept 2024], lv denied 43 NY3d 947 [2025]).

Section 440.10 provides a motion procedure for ineffective-assistance claims that depend on matters outside the direct appeal record.

People v. Prieto · filed 2025-09-25

Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal because it involves matters not reflected in, or fully explained by, the record ( see People v Rivera , 71 NY2d 705, 709 [1988]; People v Almonte , 90 AD3d 579, 580 [1st Dept 2011], lv denied 19 NY3d 956 [2012]). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claim may not be addressed on appeal.

Section 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim that cannot be resolved without evidence outside the trial record.

People v. Hawkins · filed 2025-10-01

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, and we decline to review [*2]the claim on this direct appeal ( see People v Freeman , 93 AD3d 805; People v Maxwell , 89 AD3d at 1108).

Section 440.10 provides a forum for reviewing an ineffective assistance claim based on matters outside the appellate record.

People v. Boone · filed 2025-10-03

To the extent that defendant's contention is based on matters outside the record, we note that a CPL 440.10 proceeding is the appropriate forum for reviewing his claim ( see People v Stoby , 232 AD3d 1298, 1299 [4th Dept 2024], lv denied 43 NY3d 947 [2025]).

Section 440.10 provides the procedure for raising ineffective-assistance claims that depend on matters outside the direct-appeal record.

People v. McEnaney · filed 2025-10-07

Defendant's contention that his counsel rendered ineffective assistance due to a failure to investigate the facts and law of the case, to file specific motions, and to include defendant at material stages of the trial is unreviewable on direct appeal because it involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion ( see e.g. People v Rivera , 71 NY2d 705, 709 [1988]; People v Sargsyan , 71 AD3d 401 [1st Dept 2010]; People v Bello , 23 AD3d 152, 153 [1st Dept 2005]).

An ineffective-assistance claim involving matters outside the direct-appeal record must be raised in a CPL 440.10 motion.

People v. Joel R. · filed 2025-10-07

Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claim is unreviewable on direct appeal because it involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion (see People v Gomez, 186 AD3d 422, 423—424 [1st Dept 2020]).

Section 440.10 provides the motion procedure for ineffective-assistance claims that depend on matters outside the record on appeal.

People v. Michel · filed 2025-10-10

Defendant's contention that he was denied effective assistance of counsel because defense counsel did not advise him that he was ineligible for participation in the judicial diversion program relies on matters outside the record on appeal and must therefore be raised by motion pursuant to CPL 440.10 ( see People v Chavis , 218 AD3d 1368, 1370 [4th Dept 2023], lv denied 40 NY3d 1012 [2023]; People v Vail , 174 AD3d 1365, 1366 [4th Dept 2019]).

CPL 440.10 provides a motion procedure for raising an ineffective-assistance claim that depends on matters outside the appellate record.

People v. Kuhn · filed 2025-10-10

To the extent that defendant contends that defense counsel was ineffective for failing to advise him of the SORA-related consequences of his plea, that contention concerns matters outside the record and thus must be raised in a motion pursuant to CPL 440.10 ( see People v Gravino , 62 AD3d 1259, 1259 [4th Dept 2009], affd 14 NY3d 546 [2010]; People v Keane , 221 AD3d 1586, 1588-1589 [4th Dept 2023]).

Section 440.10 provides the forum for reviewing an ineffective assistance claim that cannot be resolved without evidence outside the trial record.

People v. Uddin · filed 2025-10-15

As 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, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

CPL 440.10 provides the motion procedure for ineffective-assistance claims that depend on facts outside the direct-appeal record.

People v. Johnson · filed 2025-10-21

Defendant's claim that defense counsel was ineffective for failing to move for dismissal of the indictment on Second Amendment grounds "is unreviewable on direct appeal because it involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion"

Section 440.10 provides the motion procedure for an ineffective-assistance claim that depends on matters outside the direct appeal record.

People v. Diallo · filed 2025-10-23

Defendant's contention that his counsel rendered ineffective assistance in failing to raise his Second Amendment challenge "is unreviewable on direct appeal because it involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion" ( Cabrera , 239 AD3d at 576).

Section 440.10 provides a posttrial motion for a right-to-counsel claim that the direct-appeal record does not conclusively establish.

People v. Furet · filed 2025-11-13

We find that because "the record falls short of establishing conclusively the merit of the defendant's claim" that the "rift" in his relationship with counsel functionally deprived him of his right to counsel, the claimed violation can be reviewed only on a posttrial motion under CPL 440.10, not on direct appeal ( see People v McLean , 15 NY3d 117, 121 [2010]).

A CPL 440.10 proceeding is the appropriate forum for reviewing an ineffective assistance claim that cannot be resolved without matters outside the record.

People v. Henry · filed 2025-12-03

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, and we decline to review the claim on this direct appeal ( see People v Ponce , 232 AD3d at 742).

Section 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim that requires consideration of matters outside the direct-appeal record.

People v. Kess · filed 2025-12-31

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, and we decline to review the claim on this direct appeal ( see People v Meyn , 193 AD3d at 1080-1081).

Section 440.10 provides the procedure for raising an ineffective assistance claim that depends on matters outside the direct appeal record.

People v. Subonteng · filed 2026-01-22

Defendant's contention that counsel rendered ineffective assistance by failing to raise his Second Amendment claim is unreviewable on direct appeal because it involves matters not reflected in the record and thus, must be raised in a CPL 440.10 motion ( see People v Holder , 224 AD3d 513, 514 [1st Dept 2024], lv denied 41 NY3d 1018 [2024]).

CPL 440.10 provides the motion procedure for an ineffective-assistance claim that depends on matters outside the direct-appeal record.

People v. Jacobs · filed 2026-02-05

Defendant's contention that his counsel rendered ineffective assistance in challenging New York's then-former proper-cause requirement, rather than raising his challenge to the "good moral character" provision, is improperly raised for the first time in his reply brief ( see People v Douglas , 193 AD3d 622, 622 [1st Dept 2021], affd 40 NY3d 385 [2023]), and in any event, this claim "is unreviewable on direct appeal, as it involves matters not reflected in the record, and must be raised in a CPL 440.10 motion" ( People v Gray , 230 AD3d 1039, 1039 [1st Dept 2024], lv denied 42 NY3d 1035 [2024]).

Section 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim based on matters outside the record.

People v. Armstrong · filed 2026-02-11

Defendant's contention that he was denied effective assistance of counsel is based on matters outside the record, and thus "a CPL 440.10 proceeding is the appropriate forum for reviewing [defendant's] claim[ ]" ( People v Dunn , 229 AD3d 1220, 1223 [4th Dept 2024]).

Section 440.10 provides the forum for reviewing an ineffective-assistance claim in its entirety when resolving it requires matter outside the trial record.

People v. Canuti · filed 2026-03-20

Because defendant's "claim of ineffective assistance of counsel cannot be resolved without reference to matter outside of the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety" ( People v Franklin , 206 AD3d 1610, 1611-1612 [4th Dept 2022], lv denied 38 NY3d 1150 [2022] [internal quotation marks and emphasis omitted]; see People v Wilson , 162 AD3d 1591, 1592 [4th Dept 2018]).

Section 440.10 provides the motion procedure for an ineffective-assistance claim that depends on matters outside the direct-appeal record.

People v. Robles · filed 2026-03-24

Defendant's contention that his counsel rendered ineffective assistance in failing to raise his Second Amendment challenge is unreviewable on direct appeal as it involves matters not reflected in the record, and it must be raised in a CPL 440.10 motion ( seePeople v Martinez , 231 AD3d 448, 449 [1st Dept 2024], lv denied 42 NY3d 1081 [2025]).

Section 440.10 provides the motion for an ineffective assistance claim that depends on matters outside the direct appeal record.

People v. Garcia · filed 2026-04-07

"unreviewable on direct appeal, as it involves matters not reflected in the record, and must be raised in a CPL 440.10 motion"

An ineffective assistance claim involving matters outside the appellate record must first be raised in a CPL 440.10 motion.

People v. Jackson · filed 2026-04-30

Defendant's ineffective assistance claim based on trial counsel's failure to raise his good moral character argument is not reviewable because it involves matters not reflected in the record and thus must first be raised in a CPL 440.10 motion (see People v Martinez, 231 AD3d 448, 449 [1st Dept 2024], lv denied 42 NY3d 1081 [2025]).

Section 440.10 provides the procedure for raising an ineffective assistance claim that depends on matters outside the direct appeal record.

People v. Nicholas · filed 2026-05-05

Thus, defendant's claim must be raised in a CPL 440.10 motion (see e.g. People v Gomez, 186 AD3d 422, 423 [1st Dept 2020]).

Section 440.10 provides a motion to vacate judgment as the means to review a disclosure claim when the record is insufficient for direct appellate review.

People v. Ibrahim · filed 2026-06-10(2)(b)

The defendant's contention, raised in his appellate brief, that the People failed to exercise due diligence in disclosing the audio recordings is not reviewable on direct appeal, since the record contains insufficient evidence for this Court to review the defendant's claim ( see CPL 440.10[2][b]; People v Dixon , 138 AD3d 1016, 1017; see also People v Boyce , 118 AD3d 1016, 1016). The defendant's claim in this regard may properly be reviewed only in the context of a motion made to vacate the judgment of conviction pursuant to CPL 440.10 ( see People v Reeves , 180 AD3d 936, 938; People v Dixon , 138 AD3d at 1017).

A defendant must use a CPL 440.10 motion to raise an ineffective-assistance claim based on counsel’s advice that does not appear in the appellate record.

People v. Paredes · filed 2026-06-16

Defendant's ineffective assistance of counsel claim is not reviewable on appeal. "Where a defendant's complaint about counsel is predicated on factors such as counsel's strategy, advice or preparation that do not appear on the face of the record, the defendant must raise his or her claim via a CPL 440.10 motion" ( People v Peque , 22 NY3d 168, 202 [2013], cert denied 574 US 840 [2014]; see People v Gomez , 186 AD3d 422, 425 [1st Dept 2020]). The existing record reflects that defense counsel confirmed that she advised defendant about the immigration consequences of his plea, but "not the content of the advice given," making it "unreviewable without the benefit of a fuller record generated by way of a CPL 440.10 motion" ( People v Delacruz , 166 AD3d 405 [1st Dept 2018], lv denied 32 NY3d 1171 [2019] [internal quotation marks omitted]).

CPL 440.10 provides the appropriate forum for reviewing an ineffective assistance claim that requires evidence outside the direct appeal record.

People v. Paruolo · filed 2026-06-17

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, and we decline to review the claim on this direct appeal ( see People v Ponce , 232 AD3d at 742).

Section 440.10 is the proper vehicle for ineffective-assistance claims that depend on matters outside the record.

People v. Douglas · filed 2026-06-18

To the extent that defendant's claims are premised upon counsel's alleged failure to properly advise him regarding the plea implications or to prepare a defense, they involve matters outside the record and are more properly the subject of a CPL 440.10 motion ( see id.; People v Stefanovich , 233 AD3d at 1184; People v Sharpton , 225 AD3d 1097, 1098 [3d Dept 2024], lv denied 41 NY3d 1020 [2024]).

CPL 440.10 is the appropriate forum for reviewing an ineffective-assistance claim that cannot be resolved without facts outside the trial record.

People v. Lander · filed 2026-06-24

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, and we decline to review the claim on this direct appeal ( see People v Padilla-Padilla , 233 AD3d at 711; People v Brown , 217 AD3d 681, 682).

Section 440.10 does not allow a claim based on the trial record to be raised in a motion to vacate when it should have been raised on direct appeal.

Zheng v. Warden Sing Sing Correctional Facility · filed 2019-09-18

For example, the rule that a claim based upon a matter of record at trial must be raised on direct appeal and cannot be pursued in a motion for collateral relief under NY CPL § 440.10 is an “adequate” state procedural bar.

Section 440.10 provides a motion to vacate judgment as a way to raise claims based on matters outside the trial record.

Taylor v. Tynon · filed 2021-02-16

Thus, it appears these claims are appropriate for review in a CPL § 440.10 motion.

Section 440.10 reserves collateral attacks for claims that do not appear on the record.

Chisholm v. Uhler · filed 2022-07-14

A petitioner is only allowed one direct appeal, and a collateral attack pursuant to CPL § 440.10 is reserved for claims not on the record.

Section 440.10(2)(b) limits which contentions a court may consider on a motion to vacate a judgment.

People v. Redding · filed 2015-10-07(2)(b)

The defendant’s remaining contentions in connection with the motion either are not properly before this Court (see CPL 440.10 [2] [b]; People v Johnson, 205 AD2d 707, 708 [1994]), are without merit, or have been rendered academic in light of our determination.

Section 440.10 (2) (c) requires denial of a motion to vacate when the record permitted direct appellate review and the defendant unjustifiably failed to take a timely appeal.

People v. Lard · filed 2010-03-19(2)(c)

We noted that County Court had rejected that contention on the ground that sufficient facts appeared on the face of the record to have permitted appellate review on a direct appeal, thereby requiring denial of the motion pursuant to CPL 440.10 (2) (c) based on defendant’s unjustifiable failure to take a timely appeal. ... Contrary to the contention of defendant, the court did not abuse its discretion in again denying his motion following the hearing. There was conflicting testimony on the issue whether defendant notified defense counsel that he wished to take an appeal from the judgment of conviction within the statutory period, and the court was entitled to resolve that issue against defendant.

Section 440.10 bars a collateral challenge to a claim that could have been raised on direct appeal but was not.

Simmons v. Ross · filed 1997-05-19(2)(c)

Thus, for the reasons set forth in Bossett, Simmons cannot use CPL § 440.10 to bring his sufficiency of the evidence claim, and therefore there are no state court avenues currently available for Simmons to bring this claim.

Section 440.10(2)(c) bars collateral review of claims that could have been raised on direct appeal, and that bar can preclude federal habeas review.

Smith v. Perez · filed 2010-06-29(2)(c)

As was the case with the evidentiary and confession claims, the motion court’s reliance upon C.P.L. 440.10(2)(c) to dismiss Petitioner’s claim of prosecutorial misconduct constituted an adequate and independent state ground resulting in the procedural default of the claim on federal habeas review.

Section 440.10(2)(c) bars a postconviction claim that could have been raised on direct appeal but was not.

Richardson v. Superintendent of Mid-Orange Correctional Facility · filed 2010-09-20(2)(c)

Were we to dismiss Richardson’s petition without prejudice to allow him to exhaust his claim in state court, New York procedural rules would bar him from raising the claim at this point. See N.Y. Crim. Proc. Law § 440.10(2)(c); Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 170 (2d Cir. 2000).

Section 440.10(2)(c) can make a motion to vacate a conviction procedurally improper.

People v. Russell · filed 1997-01-30(2)(c)

Defendant’s procedurally improper (CPL 440.10 [2] [c]) and substantively meritless ... motion to vacate his judgment of conviction was properly denied.

Section 440.10(2)(b) bars a claim that could have been raised on direct appeal through due diligence.

People v. Williams · filed 2026-05-28(2)(b)

"His argument that he was deprived of his right to appear before the grand jury could have been raised on direct ... appeal" with the exercise of due diligence on his part (People v Gillespie, 205 AD3d 1212, 1216 [3d Dept 2022] [citation omitted], lv denied 39 NY3d 1072 [2023]; see CPL 440.10 [2] [b]).

Section 440.10(2)(c) bars a motion to vacate based on facts reviewable on direct appeal when the defendant does not justify failing to appeal.

People v. Williams · filed 2026-04-29(2)(c)

The facts relevant to this claim appear on the face of the record of the plea proceeding and were, therefore, subject to review on direct appeal, and the defendant failed to establish that his failure to take an appeal from the judgment was justifiable (see CPL 440.10[2][c]; People v Samaroo, 205 AD3d 822, 825; People v Terrero, 198 AD3d 930, 931; People v Malik, 166 AD3d 650, 653).

Section 440.10(2)(b) requires denial of a motion to vacate when the claims rely only on the existing record and can be addressed on direct appeal.

People v. Green · filed 2026-05-28(2)(b)

To support his motion, however, defendant provided no nonrecord evidence. As such, his claims could have been addressed on direct appeal, CPL article 440 was an improper avenue for relief and the court properly denied his motion as a result ( see CPL 440.10 [2] [b]; People v Carota , 235 AD3d 1069, 1071 [3d Dept 2025], lv denied 43 NY3d 962 [2025]; People v Hooker , 230 AD3d 1465, 1468 [3d Dept 2024]).

Section 440.10(2)(c) generally requires denial of a motion to vacate a judgment when a defendant unjustifiably failed to raise the issue on direct appeal, except for an ineffective assistance of counsel claim.

Leasure · filed 2026-02-26(2)(c)

N.Y. Crim. Proc. Law § 440.10(2)(c) (“Section 440.10(2)(c)”) directs courts to automatically deny motions to vacate a judgment where “appellate review or determination [did not] occur[] owing to the defendant’s . . . unjustifiable failure to raise such ground or issue upon an appeal . . . unless the issue raised upon such motion is ineffective assistance of counsel.”

Section 440.10(2)(b) requires denial of a motion to vacate when appellate relief is available and the defendant identifies no pertinent evidence outside the record.

People v. Demas · filed 2025-10-30(2)(b)

As such, the denial of defendant's motion was proper since appellate relief was available and defendant failed to demonstrate the existence of pertinent evidence extraneous to the record ( see CPL 440.10 [2] [b]; People v Coleman , 155 AD3d at 1098; People v Griffin , 115 AD2d 902, 904 [3d Dept 1985], lv denied 67 NY2d 884 [1986]).

Section 440.10(2)(b) requires denial of a motion to vacate when a pending appeal can adequately review the claim on the existing record, unless the claim is ineffective assistance of counsel.

People v. Winston · filed 2025-08-05(2)(b)

Pursuant to CPL §440.10(2)(b), the court must deny a motion to vacate a judgment when "the judgment is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such appeal unless the issue raised upon such motion is ineffective assistance of counsel." The court finds that the facts and circumstances underlying the defendant's actual innocence and evidentiary claims are sufficiently contained in the record so as to allow the Appellate Division to review, consider and render a decision thereon in the upcoming November Term (see People v Spradlin , 188 AD3d 1454, 1460 [Third Dept. 2020]). Accordingly, that aspect of the defendant's motion seeking relief pursuant to CPL §440.10(1)(h) must be denied.

Section 440.10(2)(c) requires denial of a motion to vacate judgment when a record-based claim could have been raised on direct appeal but was not.

Gordon-Patterson v. Bedford Hills Correctional Facility · filed 2025-07-28(2)(c)

CPL § 440.10(2)(c) requires denial of a Section 440 motion if the claim was record-based and could have been raised on direct appeal but wasn’t.

Section 440.10(2)(a) does not bar an ineffective-assistance claim based on matters outside the record considered on direct appeal, even when an ineffective-assistance claim was rejected on that appeal.

People v. Anwar · filed 2025-07-25(2)(a)

We agree with defendant that County Court erred in its determination that defendant's claim that he was denied effective assistance of counsel was procedurally barred pursuant to CPL 440.10 (2) (a) ( see People v Franklin , 206 AD3d 1610, 1611-1612 [4th Dept 2022], lv denied 38 NY3d 1150 [2022]). Although on direct appeal we rejected defendant's contention that he was denied effective assistance of counsel ( People v Anwar , 151 AD3d 1628, 1629 [4th Dept 2017], lv denied 30 NY3d 947 [2017]), we conclude that his present contentions are properly raised by way of a CPL 440.10 motion because they concern matters outside the record that was before us on his direct appeal ( see Franklin , 206 AD3d at 1611-1612).

Sections 440.10(2)(b) and (c) do not bar a collateral ineffective-assistance claim involving both record-based and nonrecord-based issues, even if the claim could have been raised on direct appeal.

People v. Kellam · filed 2025-04-25(2)(b), (2)(c)

We agree with defendant's contention in his main and pro se supplemental briefs that the motion, insofar as it raised allegations of ineffective assistance of counsel, was not procedurally barred and should not have been summarily denied on that ground ( see CPL 440.10 [2] [b], [c]).

CPL 440.10(2)(c)'s procedural bar does not apply to claims of ineffective assistance of counsel.

People v. Bailey · filed 2025-05-22(2)(c)

Although defendant's claims of ineffective assistance of counsel for failure to obtain defendant's psychiatric records were not procedurally barred by CPL 440.10 (2)(c), which expressly does not apply to claims of ineffective assistance of counsel, the court nevertheless properly found, as an alternative holding, that defendant received effective assistance of counsel under the state and federal standards ( see People v Benevento , 91 NY2d 708, 711-713 [1998]; Strickland v Washington , 466 US 668, 689-692 [1984]).

A CPL 440.10 proceeding is the appropriate forum for reviewing an ineffective-assistance claim in its entirety when the claim requires facts outside the trial record.

People v. Mendoza · filed 2025-06-11

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, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10(2)(c) bars a motion to vacate based on a claim apparent from the record that could have been raised on direct appeal.

People v. Chambers · filed 2025-04-03(2)(c)

The motion court properly found sua sponte that defendant's claims were procedurally barred pursuant to CPL 440.10(2)(c). ... Here, defendant could have asserted his geographical jurisdiction defense before the plea or sentencing court, or on a direct appeal. Moreover, that defense is based on information in the plea colloquy, which is contained in the record.

Section 440.10(2)(c) bars a collateral motion based on a claim that the defendant could have raised on direct appeal from the trial record.

Lee v. Bell · filed 2023-12-29(2)(c)

Nor can he do so now since New York only allows defendants a single appeal from conviction, N.Y. C.P.L. § 450.10, and record- based collateral appeals are not permitted. See N.Y. C.P.L. § 440.10.

Section 440.10(2)(b) does not justify denying a motion to vacate because a direct appeal is pending when the trial record lacks facts needed to review the claim.

People v. Rubadue · filed 2023-12-28(2)(b)

In the absence of such information, County Court (Richey, J.) improperly denied defendant's CPL article 440 motion upon the ground that "sufficient facts appear[ed] on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon [a pending direct] appeal" (CPL 440.10 [2] [b]).

Section 440.10(2)(c) requires denial of a motion to vacate when the trial record allowed adequate review on direct appeal and the defendant unjustifiably failed to raise the claim there.

Deowsarran v. Uhler · filed 2023-12-05(2)(c)

The court relied on New York Criminal Procedure Law § 440.10(2)(c), which requires courts to “deny a motion to vacate a judgment when . . . sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised” but the “defendant[] unjustifiabl[y] fail[ed] to . . . raise such ground or issue.” ... Here, the trial court record would have provided a sufficient basis for petitioner’s claim because whether the trial court’s failure to advise petitioner that he was being sentenced as a second felony offender would have been apparent from the plea colloquy transcript.

Section 440.10(2)(c) bars collateral review of claims that could have been raised on direct appeal.

Dorcil v. Warden, Attica Correctional Facility · filed 2023-10-13(2)(c)

Under New York law, defendants are only permitted one direct appeal, and “record-based” claims (as opposed to claims hinging on facts outside the trial record) must be raised in that direct appeal. See Gabbidon v. Lee, No. 18-cv-2248, 2022 WL 1557272, at *12–13 (S.D.N.Y. Mar. 10, 2022), report and recommendation adopted, 2022 WL 1558156 (S.D.N.Y. May 16, 2022); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (holding that New York procedural rules “plainly bar” petitioner from raising claims because he did not raise them when he “made the one request for leave to appeal to which he is entitled”); N.Y. Crim. Proc. Law § 440.10(2)(c) (barring review if claim could have been raised on direct review). Petitioner’s new claims regarding his “mugshot” and the independent reliability of the witness identifications were neither raised before the Trial Court nor on direct appeal. Thus, Petitioner’s claims are not only unexhausted, but procedurally barred.

Section 440.10(3)(a) permits denial of a motion to vacate when the issues were in the trial record or could have been put there through due diligence.

People v. Agueda · filed 2022-02-03(3)(a)

That is, these "issues are based upon matters that either were part of — or through the exercise of due diligence could have been made to appear upon — the trial record" ( People v Durham , 195 AD3d 1318, 1321 [2021], citing CPL 440.10 [3] [a]).

Section 440.10 provides the procedure for raising an ineffective-assistance claim based primarily on matters outside the direct appeal record.

People v. Jackson · filed 2022-02-04

Here, however, defendant's contention "is based primarily on matters outside the record and must be raised pursuant to a CPL 440.10 motion" ( People v Richards , 177 AD3d 1280, 1282 [4th Dept 2019], lv denied 35 NY3d 994 [2020]; see People v Balenger , 70 AD3d 1318, 1318 [4th Dept 2010], lv denied 14 NY3d 885 [2010]).

Section 440.10(2)(b) bars a motion to vacate based on a claim that sufficient facts in the record permit the court to review on direct appeal.

People v. Griffen · filed 2021-12-09(2)(b)

As Supreme Court (McDonough, J.) determined, that claim "could have been raised on his direct appeal, as 'sufficient facts appear on the record' to permit adequate review thereof and, thus, [it is] not the proper subject of a motion pursuant to CPL article 440" ( People v Dickson-Eason , 143 AD3d 1013, 1015 [2016], lv denied 28 NY3d 1123 [2016], quoting CPL 440.10 [2] [b]).

Section 440.10(2)(c) bars collateral review of claims that could have been raised on direct appeal but were not.

Bowie v. Lee · filed 2021-12-28(2)(c)

For example, in New York a defendant may challenge a conviction based on matters not in the record that could not have been raised on direct appeal, see N.Y. CRIM. PROC. LAW § 440.10(1)(f), but a defendant may not seek collateral review of claims that could have been raised on direct appeal and were not, see id. § 440.10(2)(c); see also O’Kane v. Kirkpatrick, No. 09-CV-5167, 2011 WL 3809945, at *7 (S.D.N.Y. Feb. 15, 2011) (“Under New York law, all claims that are record-based must be raised in a direct appeal . . . . It is only when a defendant’s claim hinges upon facts outside the trial record, that he may collaterally attack his conviction by bringing a claim under [NY] CPL § 440.10.”), adopted by 2011 WL 3918158 (S.D.N.Y. Aug. 25, 2011).

Section 440.10(2)(a) requires denial of a motion to vacate based on a claim previously decided on the merits on direct appeal.

Blocker v. Graham · filed 2022-02-02(2)(a)

Collateral review via a C.P.L. § 440.10 motion is foreclosed; the trial court would be required to deny Ground Three as previously determined on the merits on direct appeal.

CPL 440.10 (2) (c) bars a motion to vacate based on matters in the trial record that could have been raised on direct appeal.

People v. Mejia · filed 2021-10-01(2)(c)

Contrary to defendant's contention, we conclude that Supreme Court properly denied the relevant part of the motion pursuant to CPL 440.10 (2) (c) because the allegations of ineffectiveness that are in question involve matters of record that could have been raised on direct appeal from the judgment of conviction ( see People v Watkins , 79 AD3d 1648, 1648 [4th Dept 2010], lv denied 16 NY3d 800 [2011]; People v Smith , 269 AD2d 769, 770 [4th Dept 2000], lv denied 95 NY2d 858 [2000]; see also People v McCullough , 144 AD3d 1526, 1526-1527 [4th Dept 2016], lv denied 29 NY3d 999 [2017]; see generally People v Maffei , 35 NY3d 264, 269-270 [2020]).

Section 440.10(2)(c) bars collateral review of record-based claims that could have been raised on direct appeal.

May v. Griffin · filed 2021-11-19(2)(c)

For example, in New York a defendant may challenge a conviction based on matters not in the record that could not have been raised on direct appeal, see N.Y. CRIM. PROC. LAW § 440.10, but a defendant may not seek collateral review of claims that could have been raised on direct appeal and were not, see id. § 440.10(2)(c); see also O’Kane v. Kirkpatrick, No. 09-CV-5167, 2011 WL 3809945, at *7 (S.D.N.Y. Feb. 15, 2011) (“Under New York law, all claims that are record-based must be raised in a direct appeal . . . . It is only when a defendant’s claim hinges upon facts outside the trial record, that he may collaterally attack his conviction by bringing a claim under [NY] CPL § 440.10.”), adopted by 2011 WL 3918158 (S.D.N.Y. Aug. 25, 2011).

Section 440.10(2)(c) requires denial of a motion to vacate when the record allowed review of a claim on direct appeal but the defendant unjustifiably failed to raise it.

Irizarry v. Keyser · filed 2021-08-31(2)(c)

As an initial matter, the Court finds that Petitioner’s ineffective assistance of counsel claim is procedurally barred for two reasons. First, as the trial court found, Petitioner failed to raise these arguments on direct appeal without justification.

Section 440.10(2)(c) bars a motion to vacate based on a claim that the record permitted the defendant to raise on direct appeal but that the defendant unjustifiably failed to raise.

Griffin v. Coveny · filed 2021-08-31(2)(c)

Because it appears that this unexhausted claim is based on the record, it could have been fully raised on direct appeal but was not; consequently, Griffin cannot bring a motion to vacate as to such claim.

Section 440.10(2)(b) bars a claim that can be determined from the record and reviewed on direct appeal from being raised in a motion to vacate judgment.

People v. Simpson · filed 2021-07-29(2)(b)

As defendant's claim can be determined on the record and was reviewable on direct appeal, County Court properly denied the motion without a hearing with respect to this claim, as such claim cannot be advanced in the context of a CPL article 440 motion ( see CPL 440.10 [2] [b]; People v Herbert , 147 AD3d 1208, 1210-1211 [2017]; People v Jones , 101 AD3d 1482, 1483 [2012], lv denied 21 NY3d 1017 [2013]; People v Chiacchiarini , 91 AD3d 1118, 1119 [2012], lv denied 19 NY3d 863 [2012]; People v Lagas , 49 AD3d 1025, 1026 [2008], lvs denied 10 NY3d 859, 866 [2008]).

Section 440.10(2)(c) requires denial of a motion based on facts reviewable on direct appeal when the defendant cannot justify failing to appeal.

People v. Terrero · filed 2021-10-20(2)(c)

The facts relevant to the defendant's due process claim appeared on the face of the record and were therefore subject to review on direct appeal, and the defendant failed to establish that his failure to take an appeal from the judgment was justifiable ( see CPL 440.10[2][c]; People v Malik , 166 AD3d 650, 653; People v Zhagnay , 142 AD3d 1029, 1030).

Section 440.10 permits denial of a motion to vacate without a hearing when the record contains sufficient facts to review the claims on direct appeal.

People v. Morton · filed 2021-10-28(2)(b)

Regarding defendant's CPL article 440 motion, County Court correctly denied it without a hearing on the basis that sufficient facts appeared in the record to permit review of the issues raised in the appeal from the judgment.

Section 440.10 does not provide a basis to raise claims that the record permits a court to review adequately on direct appeal, including claims that due diligence could have placed on the record.

People v. Johnson · filed 2021-05-20(2)(b); (3)(a)

As County Court aptly observed, defense counsel's failure to challenge the sufficiency of the evidence before the grand jury and to make a timely motion to dismiss the indictment are not the proper subjects of a CPL 440.10 motion, as such claims are based on facts that either were sufficiently apparent from the face of the record or — through the exercise of defendant's due diligence — could have been readily made to appear upon the record in a manner that would have permitted adequate appellate review upon defendant's [*2]direct appeal ( see CPL 440.10 [2] [b]; [3] [a]; People v Spradlin , 188 AD3d 1454, 1460 [2020]).

A CPL 440.10 motion is needed to raise ineffective-assistance claims that depend on matters outside the direct-appeal record.

People v. Moalawi · filed 2021-06-17

Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record ( see People v Rivera , 71 NY2d 705, 709 [1988]; People v Love , 57 NY2d 998 [1982]). Accordingly, because defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal.

Section 440.10(3)(a) permits denial of claims based on matters that were in the trial record or could have been made part of it through due diligence and raised on direct appeal.

People v. Durham · filed 2021-06-24(3)(a)

Additionally, with the exception of the allegedly erroneous sentencing advice, all of the foregoing issues are based upon matters that either were part of — or [*3]through the exercise of due diligence could have been made to appear upon — the trial record ( see CPL 440.10 [3] [a]).