N.Y. Crim. Proc. Law § 440.10

After vacating a judgment, a court may dismiss the accusatory instrument in the interest of justice under section 440.10(4).

People v. DeStefano (Andrew) · filed 2017-01-24(4)

Under the circumstances of this case, we vacate the judgments of conviction and, as a matter of discretion in the interest of justice, we dismiss the accusatory instruments ( see CPL 440.10 [4]).

Section 440.10(4) permits dismissal of an indictment after a conviction is vacated when the interest of justice warrants it.

People v. Flores · filed 2023-05-23(4)

Given that defendants have already served their eight-year sentences and have been deported, the indictments should be dismissed under CPL 440.10(4) ( see People v Wagstaffe , 120 AD3d 1361, 1364 [2d Dept 2014]), and as a matter of discretion in the interest of justice.

Section 440.10(4) permits dismissal of an indictment in the interests of justice after vacatur when the defendant has already served the mandated minimum term.

People ex rel. Harris v. Mahoney · filed 1991-12-30(4)

In addition, indictment No. 220/90 was dismissed in the interests of justice pursuant to CPL 440.10 (4) upon a finding that Harris had already served the mandated minimum term of imprisonment on the vacated plea.

A court may not deny a CPL 440.10 motion for lack of due diligence when counsel reasonably explains the delay and the People show no prejudice.

People v. Maynard · filed 1992-05-28

We believe counsel’s explanation for the delay was reasonable and that County Court’s denial of the application based upon lack of due diligence was an abuse of discretion, particularly in view of the fact that the People demonstrated no prejudice because of the delay.

A defendant’s failure to exercise due diligence to preserve an adequate record before sentencing can support summary denial of a motion to vacate the judgment.

People v. Williams · filed 1993-02-18(3)(a)

Since defendant submitted only a hearsay affidavit in support of his motion to vacate the judgment (People v Salaam, 187 AD2d 363; cf , People v Smith, 187 AD2d 365), and failed to exercise sufficient due diligence to preserve an adequate record prior to sentence (CPL 440.10 [3] [a]), and in view of the court’s grant of leave to renew the application upon submission of an appropriate affidavit, an opportunity defendant did not pursue, we find no basis to reverse the order summarily denying the motion.

Section 440.10(3)(a) permits denial of a motion when the defendant unjustifiably delays bringing an alleged error to the court’s attention.

LANE, JOHNNIE, PEOPLE v · filed 2012-11-16(3)(a)

Finally, defendant’s motion was properly denied on the additional ground that he failed to set forth a reason for delaying filing his CPL 440.10 motion with the information regarding the allegedly false testimony. Due diligence in uncovering an error is required, and any unjustifiable delay is inexcusable (see CPL 440.10 [3] [a]). Defendant has provided no reason for the 14-year delay in bringing the allegedly false testimony to the court’s attention.

Section 440.10(3)(a) permits a court to deny a motion to vacate when the defendant could have placed the necessary facts on the record through due diligence.

People v. Stanley · filed 2020-12-17(3)(a)

In this regard, a court may deny such a motion where, as here, "the necessary facts, which do not appear on the record on direct appeal, could 'have readily been made to appear on the record'" through [*2]the exercise of due diligence by the defendant ( People v Howe , 150 AD3d 1321, 1323 [2017], quoting CPL 440.10 [3] [a]).

Section 440.10 provides a remedy for a claim that counsel’s pretrial representation was ineffective even when a plea bargain waives appellate review of pretrial proceedings.

People v. Darling · filed 1992-05-07

We note that defendant’s waiver was directed at the remedy of an appeal and did not encompass a waiver of the constitutional right to meaningful representation by counsel. CPL 440.10 provides defendant with a remedy for asserting a violation of this right (see, People v Brown, 45 NY2d 852), but we will not consider that issue on this appeal.

CPL 440.10 permits a defendant to assert a claim of ineffective assistance of counsel despite a waiver of the right to appeal.

People v. Condon · filed 1992-06-11

As this court recently stated in People v Darling (supra), "defendant’s waiver was directed at the remedy of an appeal and did not encompass a waiver of the constitutional right to meaningful representation by counsel” (supra, at 952), which can appropriately be asserted in a CPL 440.10 motion (see, supra; see also, People v Brown, 45 NY2d 852).

A CPL 440.10 motion to vacate a judgment is not reviewable on an appeal from the judgment of conviction.

MORRIS, ALLEN, PEOPLE v · filed 2012-04-20

Finally, defendant’s contention with respect to his motion to vacate the judgment and to set aside the sentence pursuant to CPL 440.10 and 440.20 is “not properly before us on appeal from the judgment of conviction” (People v Moore, 81 AD3d 1325, 1325, lv denied 16 NY3d 897).

An order denying a CPL 440.10 motion to vacate a conviction is nonfinal for appellate purposes because the motion is part of the original criminal proceeding.

People v. Farrell · filed 1995-02-16

Substantively, we also reject appellants’ claim that a post-judgment motion to vacate pursuant to CPL 440.10 constitutes a habeas-corpus-like or other "special proceeding” categorization for purposes of analyzing jurisdictional implications of the constitutional appellate limitation.

A CPL 440.10 motion should not be summarily denied as to a claim supported by a former attorney’s affirmation describing testimony he could give.

People v. Wilson · filed 2004-10-05

The CPL 440.10 motion also alleged that trial counsel should have called defendant’s former attorney as a witness in support of defendant’s claim that the lineup also violated defendant’s right to counsel. We find that it was error to summarily deny this branch of the motion (see People v Jenkins, 68 NY2d 896 [1986]), which was supported by an affirmation from the former attorney which stated that prior to the Wade hearing he had informed trial counsel that he was willing and able to give specific testimony supporting defendant’s claim that his right to counsel had attached at the lineup.

Section 440.10 permits denial of a motion that repeats rejected arguments, raises issues on direct appeal, or relies on speculative claims contradicted by the record.

People v. Bost · filed 2007-04-19

We also find no error in the denial of his CPL 440.10 motion since his assertions in such motion repeated previously considered and denied arguments, reiterated issues raised on direct appeal, and were speculative and contradicted by proof in the record (see generally People v Glanda, 18 AD3d 956, 960-961 [2005], lv denied 6 NY3d 754 [2005]; People v Varno, 297 AD2d 873, 874 [2002], lv denied 99 NY2d 565 [2002]; People v Turcotte, 252 AD2d 818, 820-821 [1998], lv denied 92 NY2d 1054 [1999]).

Section 440.10(1)(f) requires a defendant seeking to vacate a conviction because former defense counsel joined the prosecutor’s office to demonstrate actual prejudice.

People v. English · filed 1995-05-30(1)(f)

The trial court properly denied the defendant’s motion on the ground that he failed to demonstrate actual prejudice (see, CPL 440.10 [1] [f]; see generally, People v Keeton, 74 NY2d 903, 904; Matter of Schumer v Holtzman, 60 NY2d 46, 55; cf., People v Shinkle, 51 NY2d 417).

Section 440.10(1)(f) requires a defendant seeking to vacate a conviction for improper and prejudicial conduct to show actual prejudice.

People v. Powell · filed 1995-10-06(1)(f)

A motion premised upon CPL 440.10 (1) (f), the improper and prejudicial conduct ground, requires the defendant to show actual prejudice as a prerequisite for relief.

A de facto CPL 440.10 motion raising an alleged Rosario violation based on matter outside the record requires a showing of prejudice.

People v. Wolf · filed 2001-06-05

Since the alleged error was not one “appearing in the record,” defendant’s motion was improperly brought pursuant to CPL 330.30 (1), and was, at best, a de facto CPL 440.10 motion (see, People v Kronberg, 243 AD2d 132, 135, 152, lv denied 92 NY2d 880; People v Herrington, 194 AD2d 379, lv denied 82 NY2d 755). Accordingly, it would be necessary for defendant to demonstrate prejudice (see, People v Machado, 90 NY2d 187, 192).

A defendant raising a Rosario disclosure claim through a de facto CPL 440.10 motion bears the burden of demonstrating prejudice.

People v. Wolf · filed 2002-05-07

Therefore, we agree with the Appellate Division that the application was “at best, a de facto CPL 440.10 motion” (284 AD2d at 104). As such, defendant had the burden of demonstrating prejudice (see People v Machado, 90 NY2d 187, 192) and failed to do so here.

Failure to seek relief under CPL 440.10 can leave the record inadequate to review a claim of trial counsel’s tactical ineffectiveness.

People v. Shaw · filed 1995-11-28

By not seeking relief pursuant to CPL 440.10, defendant has failed to present a record adequate to review trial counsel’s purported tactical ineffectiveness (People v Love, 57 NY2d 998, 1000; People v Brown, 45 NY2d 852, 854).

A CPL 440.10 motion allows trial counsel to explain his strategy when a defendant claims ineffective assistance.

People v. Jenkins · filed 1998-01-20

Defendant has failed to pursue his claim that he was denied effective assistance of trial counsel by way of a CPL 440.10 motion, wherein counsel would have had the opportunity to explain his strategy.

Section 440.10 provides a motion to develop the further record needed to review an ineffective assistance claim.

People v. Aramas · filed 1998-05-19

Review of defendant’s claim of ineffective assistance of counsel would require a further record to be developed by way of an appropriate motion pursuant to CPL 440.10 (see, People v Love, 57 NY2d 998).

A CPL 440.10 motion is required to develop the record for ineffective-assistance claims that need facts beyond the existing record.

People v. Fournier · filed 1998-10-15

Defendant’s claims of ineffective assistance of counsel would require a CPL 440.10 motion in order to further develop the record (see, People v Love, 57 NY2d 998).

A CPL 440.10 motion is needed to develop crucial background facts for an ineffective assistance claim.

People v. Edwards · filed 1998-10-20

Defendant’s claim of ineffective assistance of counsel would require a CPL 440.10 motion to develop crucial background facts (see, People v Rivera, 71 NY2d 705, 709).

CPL 440.10 provides the procedure for an ineffective assistance claim based on facts outside the trial record when counsel has had no opportunity to explain the challenged strategy.

People v. Alvarado · filed 1998-12-22

Defendant’s ineffective assistance of counsel claim would require a CPL 440.10 motion, since this claim is based on facts dehors the record and counsel has had no opportunity to explain his strategy (People v Love, 57 NY2d 998).

CPL 440.10 provides a motion to expand the record when an ineffective assistance claim depends on counsel’s strategy.

People v. Shomo · filed 1999-03-11

Defendant’s ineffective assistance claim would require a motion pursuant to CPL 440.10 in order to expand the record with respect to matters of strategy.

Section 440.10 allows a defendant to seek vacatur in the court that entered the judgment and provides a way to raise trial counsel ineffectiveness claims requiring facts outside the trial record.

Otero v. Stinson · filed 1999-04-27(1)

Otero’s ineffective assistance of trial counsel motions should have been raised by a CPL § 440.10 collateral attack in the trial court. The claim, therefore, was not properly raised in state court and hence is not exhausted.

Section 440.10 provides a motion to develop the record when an ineffective-assistance claim depends on counsel’s advice and strategic analysis.

People v. Davis · filed 1999-10-28

This type of ineffective assistance claim would require a CPL 440.10 motion in order to amplify the record as to the nature of the advice rendered to defendant and as to counsel’s strategic analysis of the case underlying such advice (People v Love, 57 NY2d 998; People v Harris, 109 AD2d 351, 360).

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

People v. Toland · filed 1999-12-30

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).

CPL 440.10 provides the motion needed to expand the record for an ineffective assistance claim involving counsel’s strategy.

People v. Leonardo · filed 2000-01-11

Defendant’s ineffective assistance claim would require a motion pursuant to CPL 440.10 in order to expand the record as to matters of strategy.

CPL 440.10 provides a motion to develop the record when an ineffective assistance claim depends largely on counsel’s strategic choices.

People v. Brewster · filed 2000-06-29

Since defendant’s ineffective assistance claim rests largely on matters of strategy, including counsel’s decision to waive certain jury instructions, it would require a CPL 440.10 motion for the purpose of expanding the record as to the reasons for trial counsel’s strategic choices.

A CPL 440.10 motion is required to develop the record for an ineffective-assistance claim involving trial strategy.

People v. Guzman · filed 2000-10-03

Defendant’s ineffective assistance claim involves a matter of strategy that requires a CPL 440.10 motion in order to amplify the record.

A CPL 440.10 motion is required to expand the record when an ineffective assistance claim turns on matters of trial strategy that cannot be resolved on the existing record.

People v. Joseph · filed 2000-10-10

Defendant’s ineffective assistance of counsel claim turns on matters of trial strategy of a type that would require a CPL 440.10 motion in order to expand the record.

CPL 440.10 provides the motion procedure for an ineffective assistance claim based on counsel’s strategic decision when that decision requires an explanation.

People v. Fernandez · filed 2000-10-17

Since defendant’s ineffective assistance claim rests on a strategic decision by counsel of a type that would necessitate explanation, this claim would require a CPL 440.10 motion.

Section 440.10 provides the motion required to raise an ineffective-assistance claim that depends on facts outside the trial record.

People v. Paulino · filed 2001-10-11

Since defendant’s ineffective assistance of counsel involves facts dehors the record concerning matters of strategy, it would require a CPL 440.10 motion (People v Love, 57 NY2d 998).

A CPL 440.10 motion is the proper way to raise an ineffective assistance claim involving matters of trial strategy.

People v. Jones · filed 2001-10-18

Defendant’s ineffective assistance of counsel claim involves matters of strategy and thus should have been raised by way of a CPL 440.10 motion.

A CPL 440.10 motion is the proper way to raise an ineffective assistance claim that substantially involves trial strategy.

People v. Bowman · filed 2001-12-18

Defendant’s ineffective assistance of counsel claim should have been raised by way of a CPL 440.10 motion because a substantial portion of this claim involves matters of trial strategy, particularly with regard to the allegation that trial counsel opened the door to certain evidence.

CPL 440.10 is the proper procedure for reviewing an ineffective-assistance claim that requires a record of counsel’s strategic reasons.

People v. McNair · filed 2002-05-03

The proper procedural vehicle to review defendant’s contention, however, is a CPL 440.10 motion “so that the record could be expanded with respect to the reasons for trial counsel’s strategic choices” (People v Lemma, 273 AD2d 180, 181, lv denied 95 NY2d 906, lv denied 96 NY2d 736).

A defendant should provide factual proof supporting a claim that counsel lacked a strategic reason for challenged actions in a postverdict motion under section 440.10(1)(h).

People v. Love · filed 2003-07-17(1)(h)

The record contains no proof that avenues defendant wished counsel to pursue were valid, and defendant failed to meet his burden of demonstrating that counsel lacked any strategic reason for all the actions alleged to be ineffective representation as he did not provide any factual proof that these actions were proper or would have been successful. Defendant should have provided such proof in a postverdict motion (see CPL 440.10 [1] [h]).

Section 440.10 provides the motion procedure for an ineffective assistance claim based primarily on matters outside the trial record.

People v. Santos · filed 2005-01-20

Defendant’s ineffective assistance of counsel contention is based primarily on matters outside the record, including counsel’s strategy in jury selection, and thus would require a CPL 440.10 motion (People v Love, 57 NY2d 998 [1982]).

CPL 440.10 provides the motion required to raise an ineffective-assistance claim involving matters outside the trial record.

People v. Green · filed 2005-01-20

Defendant’s challenge to the effectiveness of his trial representation involves matters outside the record and thus would require a CPL 440.10 motion (People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]).

CPL 440.10 is the procedure for raising an ineffective assistance claim that primarily involves matters outside the trial record.

People v. Greene · filed 2005-03-31

Defendant’s ineffective assistance of counsel claim primarily involves matters outside the record and thus would require a CPL 440.10 motion.

CPL 440.10 provides a way to develop the record for ineffective-assistance claims based on matters outside the trial record.

People v. Velazquez · filed 2006-10-05

Defendant’s ineffective assistance of counsel claims primarily involve matters that are not reflected in the record, including counsel’s trial preparation and strategy. Accordingly, they are not reviewable on direct appeal and require a further record to be developed by way of a CPL 440.10 motion (see People v Love, 57 NY2d 998 [1982]).

Section 440.10 does not provide a procedure for reviewing ineffective assistance of appellate counsel; that claim must be brought by writ of error coram nobis in the appellate court.

People v. Suphal · filed 2006-12-08

Therefore, this court cannot decide this issue in a motion pursuant to CPL 440.10, and it must be heard by the Appellate Division, Second Department, as a writ of error coram nobis.

Section 440.10 provides a motion procedure for ineffective-assistance claims that require counsel to explain a possible strategic decision outside the trial record.

People v. Fludd · filed 2007-10-11

Accordingly, this aspect of defendant’s claim is unreviewable on direct appeal and would require a CPL 440.10 motion to permit counsel an opportunity to explain his reasoning (see People v Rivera, 71 NY2d 705, 709 [1988]).

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

People v. Fuentes · filed 2008-06-13

We are unable to review the further contention of defendant that he was denied effective assistance of counsel to the extent that it is based on matters outside the record on appeal. The proper procedural vehicle for raising that contention is by way of a motion pursuant to CPL 440.10 (see People v Craven, 48 AD3d 1183 [2008]; see generally People v Johnson, 24 AD3d 1257 [2005], lv denied 6 NY3d 814 [2006]).

CPL 440.10 provides a motion for raising an ineffective-assistance claim that cannot be reviewed on the appellate record.

People v. Wright · filed 2009-12-17

Even putting aside that this claim of ineffective assistance of counsel was raised for the first time in defendant’s reply brief, it can be raised only in a CPL 440.10 motion as it cannot be reviewed on this record.

CPL 440.10 is the appropriate procedure for an ineffective assistance of counsel claim based on facts outside the trial record.

People v. Rohlehr · filed 2011-08-09

The defendant’s contention that he was deprived of the effective assistance of counsel is based on matter dehors the record, and cannot be reviewed on direct appeal ... “The appropriate vehicle ... to allege ineffective assistance of counsel grounded in allegations referring to facts outside of the trial record is pursuant to CPL 440.10, where matters dehors the record may be considered”

CPL 440.10 provides the proper motion for ineffective assistance of counsel claims based on matters outside the record.

People v. Brown · filed 2011-10-13

To the extent that defendant raises arguments concerning counsel’s representation that are outside the record, the proper vehicle for such arguments is a CPL 440.10 motion.

Section 440.10 permits a motion to vacate judgment based on an ineffective assistance claim supported by new evidence the appellate court has not considered.

Graham v. Portuondo · filed 2011-11-15

Graham now has new evidence that the Appellate Division never previously considered, making a § 440.10 proceeding appropriate in this case.

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

People v. Freeman · filed 2012-03-20

Since the defendant’s claim cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the ineffective assistance claim in its entirety (see People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603, 604 [2011]).

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

People v. Delancey · filed 2012-04-17

Since the defendant’s claim of ineffective assistance 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 Freeman, 93 AD3d 805 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603, 604 [2011]).

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. Guevara · filed 2012-06-06

Since the defendant’s claim of ineffective assistance 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 Freeman, 93 AD3d 805 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603, 604 [2011]).

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

People v. Miller · filed 2012-07-05

Since the defendant’s claim of ineffective assistance 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 Freeman, 93 AD3d 805 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603, 604 [2011]).

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

People v. Jackson · filed 2012-07-11

Since the defendant’s claim of ineffective assistance 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 Hernandez, 96 AD3d 783 [2d Dept 2012]; People v Freeman, 93 AD3d 805, 806 [2012] ; People v Maxwell, 89 AD3d at 1109).

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. Taylor · filed 2012-08-08

Since the defendant’s claim of ineffective assistance 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 Freeman, 93 AD3d 805 [2012], lv denied 19 NY3d 960 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603, 604 [2011]).

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. Parker · filed 2012-10-03

Since the defendant’s claim of ineffective assistance 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 Freeman, 93 AD3d 805 [2012], lv denied 19 NY3d 960 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603, 604 [2011]).

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

People v. Cunningham · filed 2013-02-27

Since the defendant’s claim of ineffective assistance ... 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 Freeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603, 604 [2011]).

A claim of ineffective assistance of appellate counsel must be raised through a writ of error coram nobis rather than a CPL 440.10 motion.

FORSYTHE, MARVIN, PEOPLE v · filed 2013-04-26

A claim of ineffective assistance of appellate counsel must be raised in an error coram nobis proceeding (see People v Bachert, 69 NY2d 593, 595-596; People v Smith, 78 AD3d 1583, 1584). We convert defendant’s appeal from the order denying his CPL 440.10 motion to a motion for a writ of error coram nobis (see People v Angulo, 140 AD2d 209, lv dismissed 72 NY2d 855), and we grant the motion.

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

People v. Edmunson · filed 2013-08-21

Since the defendant’s claim of ineffective assistance 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 Taylor, 98 AD3d 593, 594 [2012]; People v Freeman, 93 AD3d 805 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603, 604 [2011]).

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

People v. Anthony · filed 2014-02-19

Since the defendant’s claim of ineffective assistance 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 Freeman, 93 AD3d 805, 806 [2012]; see also People v Lopez, 109 AD3d 1007, 1007 [2013]; People v Taylor, 98 AD3d 593, 594 *868[2012], affd sub nom. People v Heidgen, 22 NY3d 259 [2013]).

Section 440.10 provides a motion for ineffective-assistance claims based on facts outside the direct-appeal record.

People v. McNair · filed 2014-02-19

“ ‘The appropriate vehicle ... to allege ineffective assistance of counsel grounded in allegations referring to facts outside of the . . . record is [a motion] pursuant to CPL 440.10, where matters dehors the record may be considered’ ”

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

People v. Santana · filed 2014-02-20

Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal.

CPL 440.10 provides a way to review an ineffective-assistance claim when the record does not conclusively establish the facts needed to decide it.

People v. Rodriguez · filed 2014-03-19

Since the record does not conclusively demonstrate whether the defendant’s counsel advised him of the immigration consequences of his plea of guilty, the defendant’s contention that his counsel was ineffective for failing to do so cannot be reviewed on direct appeal; rather, the contention may be appropriately reviewed on a motion pursuant to CPL 440.10 (see People v Peque, 22 NY3d 168, 202 [2013]; People v Haffiz, 19 NY3d 883, 884 [2012]; People v Drammeh, 100 AD3d 650, 651 [2012]).

Section 440.10 provides a way to develop facts outside the trial record when an ineffective-assistance claim cannot be resolved on direct appeal.

People v. Medina-Gonzalez · filed 2014-04-15

Given that the existing record does not permit meaningful review of defense counsel’s representation, we are compelled to affirm the conviction without prejudice to further proceedings in the trial court pursuant to CPL 440.10.

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

People v. Khramtsov · filed 2014-06-19

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 forum for reviewing an ineffective-assistance claim in its entirety when the claim requires facts outside the record.

People v. Williams · filed 2014-08-20

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).

CPL 440.10 is the appropriate forum for reviewing an ineffective assistance of counsel claim that requires evidence outside the trial record.

People v. Ragguete · filed 2014-08-20

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 Freeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).

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. Fornal · filed 2014-12-31

Because the defendant’s claim of ineffective assistance 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 (People v Taylor, 98 AD3d at 594; see People v Delancey, 94 AD3d 1015 [2012]; People v Maxwell, 89 AD3d at 1109).

Section 440.10 provides the motion procedure for an ineffective-assistance claim that cannot be reviewed on direct appeal.

People v. Morgan · filed 2015-01-06

Defendant's ineffective assistance of counsel claim relating to the summation readback issue is unreviewable on direct appeal ( People v Love , 57 NY2d 998 [1982]). 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 in its entirety when the claim cannot be resolved without matters outside the record.

People v. Justice · filed 2015-04-01

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 (see People v Freeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).

CPL 440.10 is the appropriate forum for reviewing an ineffective-assistance claim that depends partly on matters outside the trial record.

People v. Rivera · filed 2015-05-13

Accordingly, a CPL 440.10 proceeding is the appropriate forum for reviewing this claim in its entirety (see People v Verni, 127 AD3d 887, 888 [2d Dept 2015]; People v Maxwell, 89 AD3d at 1109).

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

People v. Marks · filed 2015-05-13

As it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel, and 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 Williams, 120 AD3d 721 [2014]; People v Addison, 107 AD3d 730 [2013]; People v Freeman, 93 AD3d 805 [2012]).

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

People v. Mosquero · filed 2015-05-20

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).

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

People v. Sainz-Mantilla · filed 2015-06-11

Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal.

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

People v. Barrera · filed 2015-06-11

Accordingly, since 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 a forum for reviewing an ineffective-assistance claim that requires evidence outside the trial record.

People v. Duren · filed 2015-07-15

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 Freeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603, 604 [2011]).

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

People v. Borges · filed 2015-07-29

... a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Taylor, 98 AD3d at 594; People v Delancey, 94 AD3d 1015 [2012]; People v Maxwell, 89 AD3d at 1109).

A CPL 440.10 motion is required when an ineffective-assistance claim depends on counsel’s explanation for choosing to seek suppression instead of preclusion.

HARPER, BRANDON E., PEOPLE v · filed 2015-10-02

In any event, “[d]efendant’s assertion of an ineffective assistance of counsel claim based on defense counsel’s strategic decision to seek suppression of statements instead of moving to preclude the statements based on the People’s failure to provide a CPL 710.30 notice require[s] a CPL 440.10 motion in order to afford defense counsel an opportunity to explain his strategy” (People v Milsner, 34 Misc 3d 150[A], 2011 NY Slip Op 52496[U], *2, lv denied 18 NY3d 884; see People v Gross, 21 AD3d 1224, 1225).

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

People v. Tieman · filed 2015-10-07

Since the defendant’s claim of ineffective assistance 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 Freeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603, 604 [2011]).

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

People v. Ceara · filed 2015-11-25

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 Freeman, 93 AD3d 805 [2012]; People v Maxwell, 89 AD3d at 1109).

Section 440.10 provides the postconviction motion needed to pursue ineffective-assistance claims that depend on matters outside the trial record.

People v. Rodriguez · filed 2015-12-15

Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. The apologetic statements counsel made at sentencing about his trial performance do not render a postconviction motion unnecessary, especially because they are contradicted by statements counsel made in colloquies during the trial.

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

People v. Rosado · filed 2015-12-30

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).

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

People v. Mack · filed 2016-01-27

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 Crosby, 133 AD3d 681 [2015]; People v Donovan, 133 AD3d 615 [2015]; People v Adamson, 131 AD3d 701, 703 [2015]).

A CPL 440.10 motion is needed to address ineffective-assistance claims involving matters outside the direct-appeal record.

People v. Ward · filed 2016-02-11

Accordingly, since 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 requires evidence outside the trial record.

People v. Arnold · filed 2016-05-04

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 (see People v Freeman, 93 AD3d 805, 806 [2012]; 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 evidence outside the record.

People v. Thomas · filed 2016-05-18

Since the defendant’s claim of ineffective assistance 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 Freeman, 93 AD3d 805 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603, 604 [2011]).

A CPL 440.10 motion is needed to address ineffective-assistance claims involving matters outside the direct-appeal record.

People v. Rios · filed 2016-05-31

Accordingly, since 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 a motion for an ineffective-assistance claim that cannot be resolved on direct appeal because the needed facts are outside the appellate record.

People v. Michael (Raymond) · filed 2016-08-01

In such circumstances, the appropriate recourse is a motion pursuant to CPL 440.10 ( e.g. People v Youngs , 101 AD3d 1589 [2013]).

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

People v. Houston · filed 2016-10-05

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 (see People v Renaud, 137 AD3d 818, 821 [2016]; People v Maxwell, 89 AD3d at 1109).

CPL 440.10 provides a forum to review an ineffective-assistance claim in its entirety when resolving it requires matter outside the appellate record.

People v. Morris · filed 2017-02-22

Since the defendant’s claim of ineffective assistance 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 Freeman, 93 AD3d 805 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603, 604 [2011]).

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

People v. Caine · filed 2017-04-05

Accordingly, a CPL 440.10 proceeding is the appropriate forum for reviewing the defendant’s claim in its entirety (see People v Marryshow, 135 AD3d at 965; People v Maxwell, 89 AD3d at 1109; cf. People v Maldonado, 116 AD3d 980 [2014]).

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

People v. Lewis · filed 2017-05-31

Since the defendant’s claim of ineffective assistance 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 Freeman, 93 AD3d 805 [2012]; People v Maxwell, 89 AD3d at 1109).

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

People v. Martinez · filed 2017-11-29

Therefore, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Thorne, 116 AD3d 988 [2014]; People v Fakhoury, 103 AD3d at 664).

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

People v. Williams · filed 2017-12-27

Accordingly, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Freeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).

Section 440.10 provides a way to raise ineffective-assistance claims that depend on matters outside the direct-appeal record.

People v. Papanye · filed 2018-03-08

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, including counsel's plea bargaining strategy and evaluation of the likelihood of success of suppression issues ( 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 on appeal.

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

People v. Stewart · filed 2018-05-23

Since the defendant's claim of ineffective assistance 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 Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109; People v Rohlehr , 87 AD3d 603, 604).

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

People v. Peace · filed 2018-05-30

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 Marryshow , 135 AD3d 964, 965; People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 permits an ineffective-assistance claim involving both record and nonrecord facts to be reviewed as a whole, even if the claim could have been raised on direct appeal.

People v. Wilson · filed 2018-06-08

We thus conclude that the motions in appeal Nos. 1 and 2, insofar as they raised allegations of ineffective assistance of counsel, were not procedurally barred and should not have been summarily denied on that ground.

CPL 440.10 is the appropriate procedure for raising an ineffective-assistance claim based on facts outside the direct-appeal record.

People v. Stevens · filed 2018-06-27

The defendant's claims of ineffective assistance of counsel cannot be reviewed on direct appeal because they are based on matters outside the record on appeal ( see People v Rohlehr , 87 AD3d 603, 604; People v Miller , 68 AD3d 1135, 1135). " The appropriate vehicle . . . to allege [*2]ineffective assistance of counsel grounded in allegations referring to facts outside of the . . . record is pursuant to CPL 440.10, where matters dehors the record may be considered'" ( People v Rohlehr , 87 AD3d at 604, quoting People v Miller , 68 AD3d at 1135 [internal quotation marks omitted]).

Section 440.10 provides a way to raise ineffective-assistance claims that depend on facts outside the direct-appeal record.

People v. Bevel · filed 2018-09-27

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, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal.

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

People v. Maffei · filed 2018-10-24

Since the defendant's claim of ineffective assistance 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 Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109; People v Rohlehr , 87 AD3d 603, 604).

Section 440.10 provides a motion procedure for ineffective assistance claims that cannot be reviewed on the existing appellate record.

People v. Yu · filed 2018-12-20

Yu's ineffective assistance of counsel claims relating to these unpreserved issues are generally unreviewable because Yu has not made a CPL 440.10 motion. In the alternative, to the extent the existing record permits review, we find that Yu received effective assistance under the state and federal standards ( see People v Benevento , 91 NY2d 708, 713-714 [1998]; Strickland v Washington , 466 US 668 [1984]).

Section 440.10 is the appropriate vehicle for alleging ineffective assistance of counsel based on matters outside the record.

People v. Najera · filed 2019-03-06

The appropriate vehicle to allege ineffective assistance of counsel based on matter dehors the record is pursuant to CPL 440.10 ( see People v Folger , 110 AD3d 736; People v Rohlehr , 87 AD3d at 604).

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

People v. Gordon-Patterson · filed 2019-03-20

Since the defendant's ineffective assistance claim cannot be resolved in its entirety 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 Tieman , 132 AD3d 703; People v Mills , 132 AD3d 698; People v Jemmott , 132 AD3d 697).

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

People v. Morrow · filed 2019-05-08

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 the 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 entire ineffective-assistance claim when resolving it requires matters outside the record.

People v. Green · filed 2019-06-26

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 defendant's 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 to raise a claim that defense counsel failed to explain the consequences of prior felony offender status.

People v. Watson · filed 2019-07-18

To the extent that defendant argues that defense counsel failed to inform him of the consequences of being deemed a prior felony offender, such argument is more appropriately the subject of a CPL article 440 motion ( see CPL 440.10; People v Taylor, 156 AD3d 86, 90 [2017], lv denied 30 NY3d 1120 [2018]; People v Perry, 154 AD3d 1168, 1171 [2017]).

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

People v. Simmonds · filed 2019-09-18

Because 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 [*2]reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Barber , 133 AD3d 868, 872; People v Maxwell , 89 AD3d at 1109).

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

People v. Blanco · filed 2019-09-25

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 in its entirety when the claim requires material outside the trial record.

People v. Williams · filed 2019-10-23

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

People v. Vale · filed 2019-11-06

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).

Section 440.10 provides a motion procedure to expand the record when an ineffective-assistance claim implicates counsel's strategy.

People v. Vasquez · filed 2019-11-07

Defendant's ineffective assistance claim implicates counsel's strategy and thus requires expansion of the record by way of a CPL 440.10 motion.

Section 440.10(1)(h) allows a defendant to seek vacatur based on a claim that counsel gave incorrect advice about the deportation consequences of a guilty plea.

People v. Bueso (Wilmer) · filed 2020-01-30(1)(h)

We find that defendant's claim of ineffective assistance of counsel is sufficient to constitute a legal basis for the relief requested under both the United States and New York State constitutions ( see US Const Amend VI; NY Const, art I, § 6) and that his motion papers were properly supported by sworn allegations of fact ( see CPL 440.10 [1] [h]; 440.30 [3] [a], [b]; People v McDonald , 1 NY3d 109 , 114-115 [2003]; People v McKenzie , 4 AD3d 437 [2004]).

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

People v. Tannen · filed 2020-04-16

Accordingly, in the absence of a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal.

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

People v. Wilson · filed 2020-05-27

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 [*2]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(1)(h) permits a motion to vacate a conviction based on a claim of constitutionally ineffective assistance of counsel.

People v. Geohaghan (Gershman) · filed 2020-05-29(1)(h)

We find that defendant's claim of ineffective assistance of counsel is sufficient to constitute a legal basis for the relief requested under both the United States and New York State constitutions ( see US Const Amend VI; NY Const, art I, § 6) and that his motion papers were properly supported by sworn allegations of fact ( see CPL 440.10 [1] [h]; 440.30 [4] [a], [b]; People v McDonald , 1 NY3d 109 , 114-115 [2003]; People v McKenzie , 4 AD3d 437 [2004]; People v Bueso , 66 Misc 3d 143 [A], 2020 NY Slip Op 50170[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; People v Wilson , 56 Misc 3d 22 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

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

People v. Rodriguez · filed 2020-06-04

Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal.

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

People v. Gjinaj · filed 2020-07-09

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]). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal.

CPL 440.10 provides a way to raise an ineffective assistance of counsel claim based on matters outside the direct appeal record.

People v. White · filed 2020-07-15

The defendant's contention in his pro se supplemental brief that he was deprived of the effective assistance of counsel cannot be reviewed on direct appeal because it is based on matters outside the record on appeal ( see People v Shabazz , 174 AD3d 824, 825; People v Stevens , 162 AD3d 1077, 1078). The appropriate vehicle for review of such a contention is a motion pursuant to CPL 440.10 ( see People v Shabazz , 174 AD3d at 825; People v Stevens , 162 AD3d at 1078).

Section 440.10 requires a motion to vacate to develop an ineffective assistance claim based on counsel's advice outside the direct appeal record when that record does not irrefutably establish the claim.

People v. Gomez · filed 2020-08-13

We do not agree with defendant's attempt to exempt himself from the necessity of making a CPL 440.10 motion based on his counsel's statements at the plea hearing concerning the off-the-record advice concerning immigration that had been rendered.

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

People v. Jumale · filed 2020-08-20

Where, as here, "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 claim in its entirety' " ( People v Wilson [appeal No. 2], 162 AD3d 1591, 1592 [4th Dept 2018] [emphasis omitted]; see Medina , 132 AD3d at 1364; see generally People v Maffei , — NY3d &mdash, &mdash, 2020 NY Slip Op 02680, *3 [2020]).

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

People v. Mansilla · filed 2020-10-07

Since the defendant's claim of ineffective assistance 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 a motion procedure for ineffective assistance claims that depend on matters outside the direct appeal record.

People v. McLaurin · filed 2020-10-22

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 cannot be resolved without evidence outside the trial record.

People v. Robinson · filed 2020-10-28

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 evidence outside the trial record.

People v. Molina · filed 2020-11-12

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).

Section 440.10 provides the motion procedure for an ineffective assistance claim based on immigration advice that does not appear in the appellate record.

People v. Constable (Ricky) · filed 2021-02-19

Where a defendant's ineffective assistance of counsel claim is predicated on his or her failure to be advised of the deportation consequences of a guilty plea ( see Padilla v Kentucky , 559 US 356 [2010]), which failure does not appear on the face of the record, the defendant must raise the claim via a CPL 440.10 motion ( see Peque , 22 NY3d at 202; People v Haffiz , 19 NY3d 883, 885 [2012]; People v McLean , 15 NY3d 117, 121 [2010]; People v Love , 57 NY2d 998, 1000 [1982]).

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

People v. Brinson · filed 2021-03-19

To the extent that defendant's further contention that he was denied effective assistance of counsel survives his guilty plea ( see People v Barnes , 32 AD3d 1250, 1251 [4th Dept 2006]), it "involves strategic discussions between defendant and his attorney outside the record on appeal, and it must therefore be raised by way of a motion pursuant to CPL 440.10" ( People v Manning , 151 AD3d 1936, 1938 [4th Dept 2017], lv denied 30 NY3d 951 [2017]; see People v Barnes , 56 AD3d 1171, 1171-1172 [4th Dept 2008]).

CPL 440.10 provides the forum for reviewing a mixed ineffective-assistance claim that cannot be resolved without facts outside the record.

People v. Burke · filed 2021-05-12

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).

CPL 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. Bonilla · filed 2021-05-12

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).

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

People v. Aimetti · filed 2021-06-02

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 Maffei , 35 NY3d 264, 269-270; People v Martinez-Galdamez , ___ AD3d ___, 2021 NY Slip Op 02178 [2d Dept]; 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 matter outside the record.

People v. Romero · filed 2021-11-03

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 it on this direct appeal ( see People v Rodriguez , 170 AD3d at 1045; People v Hili , 158 AD3d 647, 648).

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

People v. Salmon · filed 2021-12-08

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, 806; People v Maxwell , 89 AD3d at 1109).

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

People v. Sanchez · filed 2022-01-27

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 provides a motion to raise an ineffective assistance claim based on matters outside the trial record; without that motion, the claim’s merits cannot be addressed on appeal.

People v. Sanders · filed 2022-02-17

Accordingly, because defendant has not raised this issue in a CPL 440.10 motion, the merits may not be addressed on appeal.

Section 440.10 provides the forum for reviewing an ineffective assistance of counsel claim in its entirety when resolving it requires facts outside the record.

People v. Lorenzo-Perez · filed 2022-03-09

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 facts outside the trial record.

People v. Dragani · filed 2022-04-06

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).

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

People v. Campa · filed 2022-04-06

Since the defendant's claim of ineffective assistance 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; People v Rohlehr , 87 AD3d 603, 604).

Section 440.10 provides the appropriate forum for reviewing a mixed ineffective-assistance claim that requires evidence outside the record.

People v. Dale · filed 2022-07-20

Since the defendant's claim of ineffective [*2]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 permits a postjudgment motion to consider counsel’s strategic decisions outside the trial court record when assessing ineffective assistance.

Ayala-Gonzalez v. State of New York · filed 2022-07-20

Thus, petitioner is correct that even though he presented an ineffective assistance of counsel claim on direct appeal of his conviction, the merits of such a claim is best addressed by a CPL § 440.10 motion which can consider strategic decisions that are outside of the trial court record.

Section 440.10(2)(c) does not require dismissal of an ineffective assistance of trial counsel claim merely because the alleged errors appear in the trial record or were raised on direct appeal.

Bethany v. Noeth · filed 2022-12-19(2)(c)

Now, as a matter of statute, a C.P.L. § 440.10 court may not deny ineffective assistance trial counsel claims simply because they were based on errors apparent on the trial record or were also raised on direct appeal, as was permissible under the former C.P.L. § 440.10(2)(c).

Section 440.10 provides the procedure for raising an ineffective-assistance claim based on counsel’s strategy, advice, preparation, or other facts outside the appellate record.

People v. Hubert (Kerry) · filed 2022-12-22

Where a 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, the defendant must raise his or 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 Love , 57 NY2d 998, 1000 [1982]).

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

People v. McDaniel · filed 2022-12-22

Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they generally involve matters not reflected in, or fully explained by, the record ( see People v Rivera , 71 NY2d 705, 709 [1988]). Therefore, since 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 cannot be resolved without evidence outside the trial record.

People v. Weng · filed 2023-04-26

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 Molina , 188 AD3d 920, 923; 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 that requires consideration of matters outside the trial record.

People v. Farrow · filed 2023-05-17

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 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 cannot be resolved without evidence outside the trial record.

People v. Chao · filed 2023-06-14

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 Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10(3)(a) does not bar a motion based on ineffective assistance of counsel as a deprivation of the right to counsel.

Hansen v. Johnson · filed 2023-06-29(3)(a)

Petitioner’s claim of ineffective assistance of counsel falls under the umbrella of a deprivation of counsel claim; thus, the statute should not have been applied to deny Petitioner’s 440.10 motion.

Section 440.10 provides the forum for reviewing a mixed ineffective-assistance claim that cannot be resolved without matter outside the record, to the extent the claim survives a guilty plea.

People v. Fernandez · filed 2023-07-28

Where, as here, "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' " to the extent it survives the guilty plea ( People v Wilson [appeal No. 2], 162 AD3d 1591, 1592 [4th Dept 2018]; see Barzee , 204 AD3d at 1423; Johnson , 195 AD3d at 1422; see generally People v Maffei , 35 NY3d 264, 269-270 [2020]).

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

People v. Joyce · filed 2023-08-09

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 cannot be resolved without matters outside the record.

People v. Garcia · filed 2023-12-06

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter [*2]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 consideration of matters outside the record.

People v. Banyai (Daniel) · filed 2024-03-14

Since defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matters outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety ( see People v Atkins , 157 AD3d 899, 899-900 [2018]; People v Direnzo , 134 AD3d 851, 851 [2015]; People v Freeman , 93 AD3d 805, 806 [2012]; People v Perrone-Maple , 66 Misc 3d 142[A], 2020 NY Slip Op 50164[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]).

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

People v. Rodriguez · filed 2024-04-09

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 ( see People v Holder , __ AD3d __, 2024 NY Slip Op 00814 [1st Dept 2024]; see also People v Maffei , 35 NY3d 264, 269-270 [2020]).