N.Y. Crim. Proc. Law § 440.10

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

People v. Dunston · filed 2016-02-16

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 cannot be resolved without matter outside the trial record.

People v. Robinson · filed 2016-02-24

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

CPL 440.10 permits a mixed ineffective-assistance claim to be raised and reviewed in its entirety on a motion to vacate when the on-the-record aspects alone do not establish ineffective representation.

People v. Direnzo · filed 2015-12-09

Inasmuch as the on-the-record aspects of this claim alone do not establish that the defendant was deprived of his right to effective representation, the claim is appropriately raised and reviewed in its entirety on a motion to vacate the judgment pursuant to CPL 440.10 (see People v Direnzo, 134 AD3d 850 [2015] [decided herewith]).

Section 440.10 provides the procedure for reviewing an ineffective-assistance claim that depends on facts both in and outside the trial record when the record alone cannot resolve it.

People v. Direnzo · filed 2015-12-09

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

A CPL 440.10 proceeding is the appropriate forum for reviewing an ineffective assistance claim based partly on matters outside the trial record.

People v. Dunaway · filed 2015-12-16

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 the appropriate forum for reviewing an ineffective assistance claim that depends partly on matters outside the record when the record alone does not establish the claim.

People v. Upson · filed 2015-12-23

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

People v. Delgado · filed 2015-12-23

Since the defendant’s ineffective assistance claim 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 Tieman, 132 AD3d 703 [2015]; People v Mills, 132 AD3d 698 [2015]; People v Jemmott, 132 AD3d 697 [2015]).

Section 440.10 is the proper procedure for raising a claim that counsel gave inadequate or erroneous advice about waiving a jury trial.

ASHKAR, ANDY, PEOPLE v · filed 2015-07-10

To the extent that defendant’s contention is based upon defense counsel’s allegedly inadequate or erroneous advice concerning defendant’s waiver of a jury trial, the contention is properly raised in a motion pursuant to CPL 440.10 (see Magnano, 158 AD2d at 979).

Section 440.10 provides a way to seek review of trial counsel’s strategy and other matters outside the trial record; without such a motion, appellate review is limited to the existing record.

People v. Bradley · filed 2015-04-20

First, defendant failed to move pursuant to CPL 440.10 to obtain a review of counsel’s trial strategy and other matters that are dehors the record (People v Brown, 45 NY2d 852, 853-854 [1978]; People v McNair, 114 AD3d 881 [2014]), and, as this case does not represent one of those “rare instances where the full record is sufficient to resolve the issue of counsel’s effectiveness without a 440.10 motion” (People v Medina-Gonzalez, 116 AD3d 519, 520 [2014]; cf. People v Turner, 5 NY3d 476, 481 [2005]), we are limited to the narrow scope of review permitted by the existing record (People v Troche, 81 AD3d 990, 991 [2011]; People v Lopez, 2 AD3d 234 [2003]).

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

People v. Verni · filed 2015-04-08

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

People v. Badalamenti · filed 2015-01-14

“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”

Section 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim in its entirety when the claim relies partly on matters outside the trial record.

People v. Credle · filed 2015-01-21

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 permits a defendant to raise allegations based on information outside the plea record that could not have been raised on direct appeal.

People v. Reynoso · filed 2011-10-27(2)(c)

Initially, defendant’s allegations were properly raised in a CPL 440.10 motion because they rely on information outside the record of the plea proceedings and therefore could not have been raised on direct appeal (see People v Hickey, 277 AD2d 511, 511-512 [2000], lv denied 95 NY2d 964 [2000]; see also People v Lafoe, 75 AD3d 663, 664 [2010], lv denied 15 NY3d 953 [2010]; compare CPL 440.10 [2] [c]).

A CPL 440.10 motion is the proper way to raise ineffective assistance claims based on matters outside the trial record.

People v. Underdue · filed 2011-11-03

Defendant’s arguments that counsel failed to provide advice and consult with him regarding the available defenses concern matters outside the record and are more properly the subject of a CPL 440.10 motion (see People v Moyer, 75 AD3d 1004, 1006 [2010] ).

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

KING, JERRED, PEOPLE v · filed 2011-12-23

Defendant’s contention ... is based on matters outside the record on appeal, and thus the proper procedural vehicle for raising that contention is by way of a motion pursuant to CPL 440.10 (see People v Green, 277 AD2d 970, lv denied 96 NY2d 759).

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

People v. Anderson · 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 to review an ineffective-assistance claim in its entirety when resolving it requires matters outside the trial record.

People v. Waiters · filed 2012-05-08

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]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603, 604 [2011]).

Section 440.10 provides the post-trial procedure for reviewing an unpreserved right-to-counsel claim when the record does not clearly establish the violation.

People v. McLean · filed 2010-06-10

Thus where 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.

Section 440.10 provides a way to raise a claim based on facts outside the record on direct appeal.

People v. Forgione · filed 2009-11-05(1)(b), (f)

Because his present claim alleges representations and a preplea conference with the court that are outside the record on appeal, defendant’s proper recourse is a motion pursuant to CPL 440.10 rather than direct appeal (see CPL 440.10 [1] [b], [f]; People v Graham, 298 AD2d 766, 766 [2002]; People v Booker, 280 AD2d 785, 786 [2001], lv denied 96 NY2d 916 [2001]).

A CPL 440.10 motion can expand the trial record with evidence addressing counsel’s strategic decisions.

People v. Leiva · filed 2009-02-03

Although the function of a CPL 440.10 motion, in the present context, is to expand the trial record ... defendant submitted no affidavits from the lawyers who represented him at the relevant times or from anyone else who could shed light on counsel’s strategic decisions.

A postverdict motion based on facts outside the trial record may be treated as a motion to vacate judgment under CPL 440.10.

People v. Thomas · filed 2008-10-14

With respect to the posttrial motions made by Forson, and with respect to a posttrial motion made by Mitchell that the court denied in an oral decision on May 9, 1997, to the extent they were “based on factual assertions outside the record, these motions constituted, at best, motions to vacate judgment pursuant to CPL 440.10, and since [those defendants] ... failed to obtain permission from this Court to appeal, the issues raised in [such] motions are unreviewable.

Section 440.10 provides a motion to raise grounds based on matters outside the trial record that cannot be raised on direct appeal.

People v. Sweet · filed 2006-06-09

For the same reason, those grounds may not be raised on direct appeal, but are properly raised in a motion pursuant to CPL 440.10 (see People v Williams, 305 AD2d 804, 808 [2003]; People v Darnell, 146 AD2d 583, 584 [1989], lv denied 73 NY2d 976 [1989]).

Section 440.10 provides a post-judgment motion through which a defendant can develop a reviewable record for an ineffective-assistance claim.

People v. Canonico · filed 1992-11-05

Inasmuch as defendant did not move for post-judgment relief, pursuant to CPL 440.10, a réviewable record of his claim of ineffectiveness of trial representation is not presented (People v Brown, 45 NY2d 852).

Section 440.10 provides a way to raise an ineffective-assistance claim based on matters outside the trial record, allowing inquiry into counsel’s preparation and strategy.

People v. Garcia · filed 1992-11-25

Inasmuch as defendant’s claim of ineffective assistance is based upon matters dehors the record, it is more properly the subject of a CPL 440.10 motion to vacate the conviction rather than a direct appeal (see, e.g., People v Love, 57 NY2d 998, 999-1000; People v Brown, 45 NY2d 852, 854; People v Pampalone, 183 AD2d 431; People v Jiggetts, 178 AD2d 332, lv denied 79 NY2d 949).

Section 440.10 provides a motion for ineffective-assistance claims that cannot be resolved on the direct-appeal record.

People v. Alvarez · filed 1992-12-03

Finally, defendant’s allegations that trial counsel failed to provide meaningful representation cannot be resolved on this record and defendant’s remedy, if any, is a motion pursuant to CPL 440.10 (see, People v Pena, 178 AD2d 192, lv denied 79 NY2d 1005).

CPL 440.10 provides postjudgment relief through which a defendant can develop a record for review of an ineffective-assistance claim.

People v. Daniels · filed 1992-12-10

By failing to seek postjudgment relief to challenge the effectiveness of his trial representation, defendant has failed to present an adequate record for review (CPL 440.10; People v Jones, 55 NY2d 771, 773; People v Brown, 45 NY2d 852, 853-854).

Section 440.10(1)(f) and (h) provides a postjudgment motion to resolve factual claims of trial prejudice that cannot be decided on direct appeal.

People v. Smith · filed 1992-07-09(1)(f), (1)(h)

Whether the tapes were different and, if so, whether defendant was prejudiced as a result thereof are factual issues which cannot be resolved on the evidence in the record on this appeal and, therefore, the matter cannot be considered on direct appeal (see, People v Worrell, 110 AD2d 733). Defendant’s remedy is to proceed by way of postjudgment motion (see, CPL 440.10 [1] [f], [h]).

A CPL 440.10 motion for post-judgment relief can provide a record adequate to review a claim about jury deliberations.

People v. Backus · filed 1992-06-04

Moreover, by failing to move pursuant to CPL 440.10 for post-judgment relief, defendant has not provided a record adequate to permit review of his claim (People v Love, 57 NY2d 998, 1000).

A defendant who does not raise a record-dependent ineffective-assistance claim in a CPL 440.10 motion may leave no record for appellate review.

People v. Fagan · filed 1992-06-18

Defendant’s argument that he was deprived of effective assistance of counsel because his attorney had specifically failed to challenge a stationhouse showup identification by a police officer and had failed, in general, to challenge the totality of the circumstances attendant to defendant’s identification, was never raised in a CPL 440.10 motion. As such, defendant has not established a record for review (People v Brown, 45 NY2d 852, 853).

Section 440.10 provides a postconviction proceeding for an ineffective-assistance claim that cannot be demonstrated on the appellate record.

People v. Mott · filed 1992-03-13

Defendant’s contention that he was denied effective assistance of counsel because of counsel’s failure to explore an insanity defense is not demonstrable on this record and would more appropriately be raised by means of a postconviction proceeding under CPL 440.10 (see, People v Brown, 45 NY2d 852).

A CPL 440.10 motion permits inquiry into ineffective-assistance allegations that require factual development and gives defense counsel an opportunity to respond.

People v. Stridiron · filed 1992-04-02

Defendant has not made a motion pursuant to CPL 440.10 which would permit inquiry into those specific issues and allow defense counsel an opportunity to rebut defendant’s assertions (see, People v Jiggetts, 178 AD2d 332).

A CPL 440.10 (1) motion to set aside the judgment provides a basis for further review of an ineffective-assistance claim that the trial record does not support.

People v. Felder · filed 1992-04-14(1)

The trial record does not bear out defendant’s claims that the defense proffered was ludicrous or that trial counsel was unprepared, and, no motion having been made pursuant to CPL 440.10 (1) to set aside the judgment, there is no basis for any further appellate review of defendant’s argument that she did not have effective assistance of trial counsel (see, People v Brown, 45 NY2d 852).

A defendant’s failure to establish a record through a Section 440.10 motion can leave the appellate court without an adequate basis to review an ineffective-assistance claim.

People v. Bell · filed 1991-05-07

Defendant’s failure to establish a record by motion pursuant to CPL 440.10 deprives this Court of an adequate record on which to review defendant’s claim that he was deprived of effective assistance of counsel at trial.

Section 440.10 cannot be used as a substitute for appellate review when the motion raises only matters already in the original court record.

People v. Jeffries · filed 1991-10-31

Under these circumstances, defendant should not be allowed to use CPL 440.10 as a substitute for appellate review (see, People v Cooks, 67 NY2d 100; People v Skinner, 154 AD2d 216, lv denied 76 NY2d 796).

CPL 440.10 provides a motion procedure for pursuing an ineffective-assistance claim when the appellate record is inadequate for review.

People v. Perkov · filed 1990-10-05

The record before us is inadequate to allow review of defendant’s remaining claim that he was denied the effective assistance of counsel. This matter must be pursued in a motion brought pursuant to CPL 440.10.

Section 440.10 provides a possible remedy for an ineffective assistance claim that cannot be resolved on the direct appeal record.

People v. Burton · filed 1990-12-18

Defendant’s claim that trial counsel failed to provide him meaningful representation cannot be resolved on this record. Defendant’s remedy, if any, is a motion pursuant to CPL 440.10 (see, People v Jones, 55 NY2d 771).

Section 440.10 provides a postconviction motion for an ineffective assistance claim based on matters outside the record that cannot be reviewed on direct appeal.

People v. Richardson · filed 1990-06-11

Finally, the defendant’s claim that she was denied the effective assistance of counsel is based on matters dehors the record and thus is not reviewable on direct appeal from her judgment of conviction (see, People v Bosley, 149 AD2d 520). The appropriate remedy is a postconviction motion pursuant to CPL 440.10 (see, People v Bosley, supra).

Section 440.10 remains available for an ineffective-assistance claim that depends on facts outside the trial record, even if the claim was raised on direct appeal.

Mercado v. Senkowski · filed 1990-04-27

Because petitioner may still move pursuant to N.Y.Civ.Prac.L. & R. 440.10, he has failed to exhaust available state remedies.

Section 440.10 provides a motion to vacate a judgment for a claim based on facts outside the record.

People v. Bourdonnay · filed 1990-04-30

Moreover, to the extent that the defendant’s claim is based upon facts which are dehors the record, his proper remedy is to move to vacate the judgment under CPL 440.10 (see, People v Ortiz, 143 AD2d 150).

Section 440.10 is the procedure for raising ineffective assistance claims based on matters outside the trial record.

People v. Henriquez · filed 1990-06-14

Any questions of alleged ineffectiveness which are not apparent in the record should, of course, be raised in a CPL 440.10 proceeding.

Section 440.10 provides a motion to vacate judgment through which a defendant may develop background facts supporting an ineffective-assistance claim.

People v. Bennett · filed 1990-01-30

In failing to make the appropriate CPL 440.10 motion to vacate the judgment on the ground now alleged, ineffective assistance of trial counsel, defendant denies this court the opportunity to consider additional background facts which might have been developed (People v Satterfield, 66 NY2d 796, 799).

Section 440.10 provides a motion to develop additional facts supporting an ineffective-assistance claim that cannot be considered on the trial record alone.

People v. Lawton · filed 1990-03-13

In failing to make the appropriate CPL 440.10 motion to vacate the judgment on the ground of ineffective assistance of trial counsel, defendant has denied this court the opportunity to consider additional background facts which might have been developed (People v Bennett, 157 AD2d 630).

Section 440.10 provides the posttrial motion for developing evidence outside the appellate record to support an ineffective-assistance claim.

People v. Sullivan · filed 1990-01-08

We note only that, if the defendant had intended to present such additional proof, it was incumbent upon him to make the appropriate posttrial motion (CPL 440.10; see, People v Love, 57 NY2d 998; People v Brown, 45 NY2d 852 [arguments based on ineffective assistance of counsel must ordinarily be supported by record developed in collateral proceeding]; see also, People v Salgado, 140 AD2d 855, 856; People v Garay, 136 AD2d 652, 653; People v Smith, 112 AD2d 389; People v Marchand, 104 AD2d 624; People v Leonard, 102 AD2d 857).

Section 440.10 provides a motion to vacate judgment as the avenue for a claim of prosecutorial misrepresentation that is not established by the appellate record.

People v. De Tore · filed 1974-05-08

If, as is contended, the prosecutor misrepresented to the jury that no consideration was offered to La Spina for his testimony, it is not established by the record. The appropriate remedy, if any, would lie by way of a motion to vacate judgment (see CPL 440.10).

Section 440.10 provides a procedure for presenting new matters outside the appellate record to the court of conviction.

People v. Walrath · filed 1976-05-06

We again express our disapproval of presenting evidentiary material not in the record on appeal for consideration by the court (People ex rel. Mills v Guay, 47 AD2d 678). This new matter should have been presented to the court in which the judgment of conviction was rendered (CPL 440.10, 440.30).

Section 440.10(1)(f) provides a motion to vacate judgment as the remedy for a claim concerning a jury-trial waiver that lacks support in the record.

People v. Linzy · filed 1976-10-28(1)(f)

In view of uncontradicted assertions in the briefs concerning the granting of a severance only on condition of defendant waiving a jury trial, but absent support in the record, defendant’s remedy is by motion to vacate the judgment under CPL 440.10 (subd 1, par [f]). In so holding the court, of course, expresses no view as to how such motion should be decided.

Section 440.10 permits a motion to vacate a conviction based on interference with the right to counsel.

People v. Pittman · filed 1975-11-06

Authority for the use of a motion under CPL 440.10 as a means of securing the vacating of his judgment of conviction is found in People r Silverman (3 NY2d 200) wherein the court stated: "Although the fundamental precept of coram nobis is that it may not be employed to raise errors appearing on the face of the record, there is an exception to this basic rule. Judicial interference with the right to counsel guaranteed to defendant by law may warrant the extraordinary remedy of coram nobis, even though the error appears on the face of the record”.

Section 440.10 provides a motion to vacate the judgment as the procedure for establishing a claimed denial or impairment of the right to counsel when the existing record is insufficient.

People v. Skrynski · filed 1977-06-30

The appropriate procedure to establish such denial or impairment, if any, would be a motion to vacate the judgment in the nature of coram nobis under CPL 440.10.

Section 440.10 provides grounds to vacate a conviction but does not provide Montgomery relief to extend the time to appeal.

People v. Corso · filed 1976-10-26

CPL 440.10 is designed and delineates the grounds for vacating a judgment of conviction while, on a Montgomery claim, the defendant essentially seeks an extension of time for taking an appeal via resentencing rather than a vacatur of his conviction.

Section 440.10 provides a motion to pursue ineffective-assistance claims when the appellate record lacks enough facts to review them.

People v. Mangine · filed 1979-12-14

Insufficient facts appear in this record to permit adequate review of these allegations, and these claims may be pursued, if the defendant is so advised, by moving pursuant to CPL 440.10.

Section 440.10 provides a proceeding for claims that depend on facts outside the trial record, including a claim that a jury trial waiver was not knowing and voluntary.

People v. Johnson · filed 1980-11-20

... the appellant’s present claim that his participation in the waiver was not 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.

CPL 440.10 is the proper procedure for raising an ineffective-assistance-of-counsel claim under the circumstances of this case.

People v. Carter · filed 1980-09-26

Under the circumstances the issue of ineffective assistance of counsel should properly be raised in a motion to vacate the judgment pursuant to CPL 440.10 (see People v Crump, 74 AD2d 719).

CPL 440.10 permits a motion to raise an ineffective assistance of counsel claim that cannot be reviewed on the direct appeal record.

People v. Valot · filed 1981-01-05

Defendant’s allegations as to his claim of ineffectiveness of counsel cannot be reviewed on this record. Such a claim may be the subject of a motion pursuant to CPL 440.10.

Section 440.10 is ordinarily the more appropriate route for an ineffective-assistance claim, but an adequate record permits review on direct appeal.

People v. Long · filed 1981-04-14

Although in the typical case an attack on the effectiveness of counsel is more appropriately reviewable on the basis of a postconviction application under CPL 440.10, this record is adequate for appellate disposition of the claim.

CPL 440.10 permits a motion to vacate judgment when a claim needs fuller factual development than the direct appeal allows.

People v. Hernaiz · filed 1981-01-20

Under the circumstances, this issue is more appropriately addressed by a motion to vacate the judgment pursuant to CPL 440.10 which would permit a more complete development of the relevant facts.

Section 440.10 permits a defendant to seek vacatur based on matters outside the appellate record and have substantial, material factual questions resolved by the trial court.

People v. Roberts · filed 1982-08-23

However, defendant may address such issues in an application to the County Court to vacate the judgments of conviction pursuant to CPL 440.10, and have all substantial and material questions of fact generated by such application resolved by that court (see People v Matay, 82 AD2d 867, 868).

Section 440.10 provides a motion to set aside a conviction when a defendant needs to establish facts about the weapon used in the offense.

People v. Pellegrino · filed 1983-01-25

If, indeed, the weapon used in the commission of the robbery was an inoperable one, defendant’s remedy is to move, pursuant to CPL 440.10 and 440.20 to set aside the judgment of conviction and the sentence. At that time defendant will have the opportunity to establish, by way of record, the nature of the weapon used in the robbery.

Section 440.10 allows a hearing on an ineffective assistance claim that depends on facts outside the trial record, such as counsel’s failure to contact potential witnesses.

People v. Harris · filed 1981-05-04

Although the ineffectiveness of counsel may be raised on appeal when counsel has erred on the record or has failed to take action upon something which occurred during trial, the claim raised here with respect to counsel’s ineffectiveness is a matter dehors the record. It involves the question of whether counsel, in fact, prepared defendant’s case as he should have. Proof that he did not may be presented only through statements of persons who did not appear at trial and who had no connection with the trial. Under these circumstances, we deem it necessary to remit the matter to Criminal Term for a hearing.

Section 440.10 provides a trial court proceeding for an ineffective assistance of counsel claim left unresolved on direct appeal.

People v. Prentice · filed 1983-01-31

Any claim that defendant was deprived of the effective assistance of counsel should be resolved by the trial court in a CPL 440.10 proceeding ... and the determination here is without prejudice to such application.

Section 440.10 allows a defendant to pursue an ineffective-assistance claim when the trial record does not support it.

People v. Boans · filed 1983-04-01

There is nothing in the record which supports defendant’s claim that he was denied the effective assistance of counsel and defendant may pursue that issue under CPL 440.10 (see People v Brown, 45 NY2d 852, 853-854).

Section 440.10 provides a postjudgment motion for ineffective-assistance claims that require facts beyond the trial record.

People v. Leonard · filed 1984-06-11

These claims would be more properly raised in a postjudgment motion made pursuant to CPL 440.10, at which time additional background facts could be developed (see People v Love, 57 NY2d 998; People v Brown, 45 NY2d 852).

Section 440.10 provides a postjudgment procedure for ineffective-assistance claims that require facts beyond the appellate record.

People v. Marchand · filed 1984-09-17

Defendant’s contention regarding his claim of ineffective assistance of counsel due to his counsel’s failure to arrange for defendant to appear and testify before the Grand Jury cannot be determined on the record before us and “would be more properly raised in a postjudgment motion made pursuant to CPL 440.10, at which time additional background facts could be developed (see People v Love, 57 NY2d 998; People v Brown, 45 NY2d 852)” (People v Leonard, 102 AD2d 857).

CPL 440.10 provides a collateral proceeding for claims that require an additional factual record.

People v. Drummond · filed 1984-02-06

For the most part, defendant’s claims require the making of an additional record, and should be determined by way of a collateral or postconviction proceeding pursuant to CPL 440.10 (see People v Brown, 45 NY2d 852; People ex rel. Hall v LeFevre, 92 AD2d 956, 957).

Section 440.10 provides a collateral procedure for ineffective-assistance claims that require an additional record.

People v. Berghout · filed 1984-12-17

This court cannot say, on the basis of the record before it, that defendant was denied the effective assistance of counsel (see People v Baldi, 54 NY2d 137, 146-147). “For the most part, defendant claims require the making of an additional record, and should be determined by way of a collateral or postconviction proceeding pursuant to CPL 440.10” (People v Drummond, 99 AD2d 760).

CPL 440.10 permits a motion to raise claims based on matters outside the record, including alleged plea coercion, ineffective assistance of counsel, and newly discovered evidence, subject to statutory requirements.

People v. Wolcott · filed 1985-06-06

Since defendant’s contentions of coercion and ineffective counsel, including a claim that his attorney refused to consider a “list of witnesses” available for trial, are grounded on matters not appearing in the record, the issues are not reviewable on direct appeal, but may be explored under a CPL 440.10 motion provided that the statutory requirements are met (CPL 440.30; see, People v Welch, 108 AD2d 1020; People v Boans, 93 AD2d 1000).

CPL 440.10 provides the proper motion to raise an ineffective-assistance claim based on matters outside the record.

People v. Medina · filed 1985-06-06

Where the bases for the allegation of lack of meaningful representation are matters outside of the record, the proper means of raising such claim is a motion pursuant to CPL 440.10 to vacate the judgment of conviction.

Section 440.10 provides a postconviction remedy for ineffective-assistance claims based on facts outside the record.

People v. Oquendo · filed 1985-08-05

To the extent that defendant’s claim of ineffective assistance of counsel is based on facts outside the record, defendant’s appropriate remedy is to bring a postconviction proceeding under CPL 440.10 (see, People v Brown, 45 NY2d 852; People v Drummond, 99 AD2d 760).

Section 440.10 provides a postconviction proceeding in which a claim of ineffective assistance of counsel may be explored at an evidentiary hearing if warranted.

People v. Gonzalez · filed 1985-04-25

As to the unresolved motion, defendant’s remedy lies not in an appeal from his conviction, but, rather, in a postconviction proceeding pursuant to CPL 440.10 in which, if warranted, the question of counsel’s ineffectiveness may be explored at an evidentiary hearing.

CPL 440.10 provides a collateral proceeding for ineffective-assistance claims that require an additional record.

People v. Montez · filed 1985-06-17

Defendant’s claims of ineffectiveness of counsel require the making of an additional record, and should be determined by way of a collateral or postconviction proceeding pursuant to CPL 440.10 (see, People v Lawrence, supra; People v Drummond, 99 AD2d 760).

Section 440.10(1)(h) permits a defendant to raise an ineffective-assistance-of-counsel claim by motion.

People v. Van Gordon · filed 1985-07-18(1)(h)

Defendant is, of course, entitled to raise this claim, with appropriate supporting papers (CPL 440.30 [1]), by making a motion pursuant to CPL 440.10 (1) (h).

Section 440.10 provides a postjudgment motion for developing evidence on an ineffective-assistance claim that depends on facts outside the trial record.

People v. Smith · filed 1985-07-22

Defendant’s claim would be more properly raised in a postjudgment motion made pursuant to CPL 440.10, at which time evidence could be secured concerning the performance of defendant’s counsel and the reasons defendant chose to testify (see, People v Love, 57 NY2d 998; People v Leonard, 102 AD2d 857).

CPL 440.10 provides a postconviction procedure for ineffective assistance claims that require an additional record.

People v. Martinez · filed 1985-05-06

We note that for the most part, defendant’s claims of ineffective assistance of counsel require the making of an additional record, and should be determined by way of a collateral or postconviction proceeding pursuant to CPL 440.10 (see, People v Drummond, 99 AD2d 760).

Section 440.10 permits a postjudgment motion raising an ineffective-assistance claim based on matters outside the trial record.

People v. Reyes · filed 1986-06-16

As the defendant’s claim that his attorney was ineffective is based on matters outside the record, it cannot be addressed on appeal but may be raised in a postjudgment motion pursuant to CPL 440.10 (see, People v Leonard, 102 AD2d 857).

Section 440.10 is an appropriate procedure for raising a claim based on matters outside the trial record.

People v. Samuels · filed 1986-06-30

Further, the defendant’s claim that the verdict was the result of a threat to sequester the jury is based on matter dehors the record and is accordingly more appropriately the subject matter of a motion pursuant to CPL 440.10.

Section 440.10 provides a postconviction remedy for ineffective assistance claims based largely on facts outside the appellate record.

People v. Robinson · filed 1986-07-14

The defendant’s claim that he was not afforded the effective assistance of counsel is based largely on facts outside of the record. Thus, his appropriate remedy is to bring a postconviction proceeding pursuant to CPL 440.10 (see, People v Brown, 45 NY2d 852; People v Drummond, 99 AD2d 760).

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

People v. Banks · filed 1986-02-03

Defendant’s claim of ineffective assistance of counsel, which is based on matters dehors the record, should be raised by way of motion pursuant to CPL 440.10 (see, People v Conyers, 114 AD2d 967).

Section 440.10 provides the state post-conviction procedure for an ineffective-assistance claim that requires an evidentiary hearing beyond the direct-appeal record.

United States Ex Rel. LaSalle v. Smith · filed 1986-04-11

Accordingly, petitioner is required to raise the effective assistance of counsel claim by way of a motion pursuant to C.P.L. § 440.10 before seeking habeas corpus relief pursuant to 28 U.S.C. § 2254.

Section 440.10 provides a collateral proceeding for ineffective-assistance claims based on allegations that require an additional record.

People v. Brown · filed 1986-02-18

Similarly, the defendant’s claims of ineffective assistance of counsel are not supported by the record and are based on allegations which require the making of an additional record. As such, these claims should be pursued by way of a collateral or postconviction proceeding pursuant to CPL 440.10 (see, People v Montez, 111 AD2d 877).

Section 440.10 provides the procedure for raising claims of plea coercion or ineffective assistance that depend on facts outside the appellate record.

People v. Cogswell · filed 1987-02-12

Preliminarily, we observe that our review of the matter is limited to the record before us and any assertion of coercion or ineffective assistance resting on matters dehors the record must be raised via a motion pursuant to CPL 440.10 (see, People v Welch, 108 AD2d 1020).

Section 440.10 provides a motion to vacate a conviction when the appellate record is insufficient to review a claim that a guilty plea was coerced.

People v. Stott · filed 1987-05-28

By a recently received pro se memorandum, defendant requests that he be permitted to withdraw his guilty plea on the ground that the plea was coerced, the record before us is not sufficient to permit review of this claim. Defendant’s remedy, if any there be, is through a motion pursuant to CPL 440.10 to vacate the conviction.

Section 440.10(1)(h) permits an ineffective assistance claim based on matters outside the trial record to be raised in a motion to vacate the judgment.

People v. Hauver · filed 1987-04-23(1)(h)

A claim of ineffective assistance of counsel grounded on matters not appearing in the record is appropriately raised by a CPL 440.10 (1) (h) motion (see, People v Cogswell, supra). County Court improperly denied this aspect of defendant’s motion on the premise that the record on appeal from the judgment afforded an adequate basis for review (see, CPL 440.10 [2] [b]; 440.30 [2]).

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

People v. Henderson · filed 1987-05-07

To the extent that this argument rests on matters outside the record, the objection must be raised pursuant to a CPL 440.10 motion (People v Cogswell, 127 AD2d 871; People v Welch, 108 AD2d 1020).

CPL 440.10 provides the motion procedure for presenting an ineffective-assistance claim based on matters outside the record.

People v. Kimble · filed 1987-10-26

The defendant’s claim as to the ineffective assistance of counsel rests upon matters outside the record and may only be presented by way of a motion pursuant to CPL 440.10.

CPL 440.10 is the proper vehicle for claims about counsel’s conduct that are unsupported by the appellate record.

People v. Maldanado · filed 1987-11-23

The defendant’s allegations regarding his counsel’s failure to investigate his case and advise him of his constitutional rights are not supported by the record before this court and are more properly the subject of a motion pursuant to CPL 440.10.

CPL 440.10 is the required motion procedure for an ineffective-assistance claim that rests on matters outside the record.

People v. Ocana · filed 1987-12-21

To the extent that the defendant’s claim of ineffective assistance of counsel rests upon matters outside the record, such a claim may only be presented by way of a motion pursuant to CPL 440.10 (see, People v Kimble, 133 AD2d 849).

Section 440.10 provides a motion for an ineffective-assistance claim that cannot be determined on the direct-appeal record.

People v. Garay · filed 1988-01-19

The defendant’s contention that he was denied the effective assistance of counsel due to his attorney’s failure to move to dismiss the indictment on the ground of preindictment delay cannot be determined on the record before us and would be more properly raised in a motion pursuant to CPL 440.10 (see, e.g., People v Love, 57 NY2d 998; People v Smith, 112 AD2d 389; People v Marchand, 104 AD2d 624).

Section 440.10(1)(f) permits a postjudgment motion based on an ineffective-assistance claim involving matters outside the trial record.

People v. Knox · filed 1987-11-12(1)(f)

Although County Court erred in entertaining the motion (which would have been proper as a postjudgment motion pursuant to CPL 440.10 [1] [f]), since no objection was made and a hearing has already been held by County Court, we see nothing to be gained by remitting the matter for the proper motion to be made at this time.

CPL 440.10 provides a postconviction remedy for ineffective-assistance claims based largely on facts outside the trial record.

People v. Ricks · filed 1987-12-28

The defendant’s claim that he was not afforded the effective assistance of counsel is based largely on facts dehors the record. Thus, his appropriate remedy is to bring a postconviction proceeding pursuant to CPL 440.10 (see, People v Brown, 45 NY2d 852; People v Robinson, 122 AD2d 173, lv denied 68 NY2d 1003).

A CPL 440.10 motion may raise a claim based on facts outside the record even when the claim was previously raised on direct appeal.

People v. Hammond · filed 1988-02-04

While defendant previously made this argument on direct appeal, his current allegation is based on facts outside the record, therefore making the instant proceeding pursuant to CPL 440.10 proper (see, People v Robinson, 122 AD2d 173, 175, lv denied 68 NY2d 1003; People v Welch, 108 AD2d 1020, 1021).

Section 440.10 provides a postconviction motion as the appropriate remedy for an ineffective-assistance claim based largely on matters outside the direct-appeal record, provided its statutory requirements are met.

People v. Navedo · filed 1988-02-16

The appropriate remedy is a postconviction motion pursuant to CPL 440.10, provided the statutory requirements are met (CPL 440.30; see, People v Brown, 45 NY2d 852; People v Wolcott, supra).

Section 440.10 provides a postconviction remedy for ineffective-assistance claims based on matters outside the record, provided its statutory requirements are met.

People v. Candelaria · filed 1988-04-25

The appropriate remedy is a postconviction proceeding pursuant to CPL 440.10, provided the statutory requirements are met (CPL 440.30; see, People v Brown, 45 NY2d 852; People v Navedo, supra; People v Wolcott, supra).

CPL 440.10 provides a proceeding to develop facts supporting an ineffective-assistance claim when those facts cannot be shown on the direct appeal record.

People v. Salgado · filed 1988-05-19

In most cases "the ineffectiveness of counsel is not demonstrable on the main record”, so that a defendant must resort to a proceeding under CPL 440.10 to develop an adequate record concerning the factual issues raised by an attack on the effectiveness of counsel (People v Brown, 45 NY2d 852, 853-854).

Section 440.10 permits a defendant to raise a Rosario-material claim when the appellate record is inadequate to decide it.

People v. Battles · filed 1988-06-20

However, the record in this case is inadequate to make a determination as to that issue, which may be raised by way of a motion pursuant to CPL 440.10 (see, People v Drummond, 99 AD2d 760; People v Sergi, 96 AD2d 911).

Section 440.10 provides a postconviction remedy for ineffective-assistance claims based on facts outside the trial record.

People v. Ortiz · filed 1988-08-08

The defendant’s claim that he was not afforded the effective assistance of counsel is based largely on facts dehors the record. Thus, his remedy is to bring a postconviction proceeding pursuant to CPL 440.10 if so advised (see, People v Brown, 45 NY2d 852; People v Robinson, 122 AD2d 173, lv denied 68 NY2d 1003).

Section 440.10 provides a postconviction remedy for ineffective-assistance claims based on matters outside the direct-appeal record.

People v. Dennis · filed 1988-11-14

Insofar as the defendant’s claim that he was not afforded the effective assistance of trial counsel is predicated on matters dehors the record, those matters are not reviewable on direct appeal from the judgment of conviction (see, People v Robinson, 122 AD2d 173, lv denied 68 NY2d 1003; People v Wolcott, 111 AD2d 943). The appropriate remedy is a postconviction proceeding pursuant to CPL 440.10 (see, People v Brown, 45 NY2d 852; People v Wolcott, supra).

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

People v. Nieves · filed 1988-11-21

The defendant’s contention that he was denied effective assistance of counsel due to his attorney’s failure to conduct the necessary pretrial investigation is dehors the record and has not been considered. That claim should have been brought pursuant to CPL 440.10 (see, People v Smith, 112 AD2d 389, Iv denied 66 NY2d 767).

CPL 440.10 provides a remedy for a challenge to a jury-trial waiver based on matters outside the record.

People v. Aponte · filed 1988-11-28

If there are matters dehors the record which call into question the court’s approval of the waiver, the defendant’s remedy is to make an application pursuant to CPL 440.10 (see, People v Johnson, supra).

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

People v. Bux · filed 1988-11-28

The appropriate remedy is a postconviction proceeding pursuant to CPL 440.10 (see, People v Brown, 45 NY2d 852; People v Wolcott, supra).

Section 440.10 provides a written motion to vacate a judgment when the direct-appeal record is insufficient to review a claim of ineffective assistance of counsel or denial of a speedy trial.

People v. Darnell · filed 1989-01-09

Thus, we are unable to review the defendant’s claim of ineffective assistance of counsel and the defendant’s remedy, if he be so advised, is to make a written motion pursuant to CPL 440.10 before the County Court to vacate the judgment against him on the ground that he was denied the effective assistance of counsel or a speedy trial.

Section 440.10 (1) (h) permits a defendant to raise an ineffective-assistance claim based on counsel’s failure to seek dismissal for a statutory speedy trial violation.

People v. Miller · filed 1988-07-07(1)(h)

Defendant’s claim of ineffective assistance of counsel, because of defense counsel’s failure to make a motion to dismiss the indictment for noncompliance with the statutory speedy trial requirement, may properly be the subject of a motion pursuant to CPL 440.10 (1) (h) (see, People v Williams, 140 AD2d 969).

Section 440.10(2)(c) does not bar an ineffective-assistance claim based on evidence outside the record merely because the defendant failed to take a timely direct appeal.

People v. Ertel · filed 1989-02-02(2)(c)

Defendant appeals, correctly arguing that his ineffectiveness of counsel claim is based on evidence dehors the record and thus a postconviction proceeding is the proper vehicle for pressing his claim (see, People v Brown, 45 NY2d 852, 853-854).

Section 440.10 provides a postconviction remedy for an ineffective-assistance claim based on matters outside the direct-appeal record.

People v. Wilcox · filed 1989-02-21

His appropriate remedy is a postconviction proceeding pursuant to CPL 440.10 (see, People v Candelaria, 139 AD2d 752).

Section 440.10 provides the proper proceeding for an ineffective-assistance claim supported by matters outside the trial record.

People v. Gamal · filed 1989-03-06

If there are matters outside the record which would support the defendant’s contention, the proper remedy is a proceeding pursuant to CPL 440.10 (see, e.g., People v Banks, 117 AD2d 611, lv denied 67 NY2d 939; People v Martinez, 111 AD2d 189, lv denied 66 NY2d 920).

CPL 440.10 is the proper vehicle for ineffective-assistance claims based on matters outside the trial record.

People v. Salcedo · filed 1989-05-15

The allegations contained in the defendant’s supplemental pro se brief with respect to his claim of ineffective assistance of counsel are based on matters dehors the record and are more properly raised in a motion pursuant to CPL 440.10.

Section 440.10 provides a postconviction remedy for an ineffective-assistance claim based on matters outside the record.

People v. Williams · filed 1989-06-26

Since the claim of ineffectiveness is based on matters outside of the record, the defendant’s remedy is to bring a postconviction proceeding pursuant to CPL 440.10 (see, People v Ortiz, 143 AD2d 150).

A CPL 440.10 postconviction motion is the appropriate remedy for an ineffective assistance claim based on matters outside the direct appeal record.

People v. Walker · filed 1989-07-10

The defendant’s claim that he was not afforded the effective assistance of counsel is based on matters which are dehors the record, which matters are not reviewable on direct appeal (see, People v Robinson, 122 AD2d 173; People v Wolcott, 111 AD2d 943). The appropriate remedy is a postconviction motion pursuant to CPL 440.10 (see, People v Brown, 45 NY2d 852; People v Wolcott, supra, at 943).

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

People v. Hamlin · filed 1989-08-14

With respect to the defendant’s claim of ineffective assistance of counsel, predicated upon his allegation dehors the record that counsel ignored his express desire to testify before the Grand Jury, we find that the defendant’s appropriate remedy is to bring a proceeding pursuant to CPL 440.10 (see, People v Brown, 45 NY2d 852; People v Smith, 112 *646AD2d 389).

CPL 440.10 provides a motion procedure for raising a claimed denial of Rosario material when the appellate record is inadequate to resolve it.

People v. Woods · filed 1989-12-18

Given the inadequacy of this record, this issue would more appropriately be raised by way of a motion pursuant to CPL 440.10 (see, People v Battles, 141 AD2d 748; People v Drummond, 99 AD2d 760).

Section 440.10 provides the appropriate procedure for raising an ineffective-assistance claim based on allegations outside the record.

People v. Allen · filed 1989-12-26

As to the defendant’s claim of ineffective assistance of counsel, predicated upon his allegation dehors the record that counsel ignored his express desire to testify before the Grand Jury and at trial, the defendant’s appropriate remedy is to bring a proceeding pursuant to CPL 440.10 (see, People v Hamlin, 153 AD2d 644; People v Brown, 45 NY2d 852).

Issues that do not appear on the appellate record can be raised only in a CPL 440.10 motion.

People v. Preslar · filed 1990-02-02

Many of the issues raised do not appear on the record and can be raised only in a motion pursuant to CPL 440.10.

Section 440.10 provides a post-conviction motion remedy for ineffective-assistance claims based on matters outside the record.

People v. Southard · filed 1990-02-05

The defendant’s claim that he was not afforded the effective assistance of counsel is based on matters dehors the record and thus not reviewable on direct appeal (see, People v Walker, 152 AD2d 644; People v Bosley, 149 AD2d 520; People v Robinson, 122 AD2d 173). The appropriate remedy is a post-conviction motion pursuant to CPL 440.10 (see, People v Walker, supra; People v Bosley, supra).

CPL 440.10 provides a motion to vacate a conviction for claims about counsel’s effectiveness that depend on matters outside the record.

People v. Finkman · filed 1990-03-05

To the extent that the defendant’s claims regarding the effectiveness of his representation by counsel concern matters outside the record, the proper remedy is an application to the Supreme Court to vacate the judgment of conviction pursuant to CPL 440.10.

Section 440.10 provides a proceeding for a jury-waiver challenge that requires facts outside the trial record.

People v. McDaniel · filed 1990-05-11

The validity of that contention cannot be determined on this record and must be established, "if at all, by facts outside the trial record in a proceeding maintainable under CPL 440.10” (People v Johnson, 51 NY2d 986, 988; see also, People v Magnano, 158 AD2d 979).

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

People v. Oliviera · filed 1990-12-31

However, since the issue of ineffective assistance of counsel is based on matters dehors the record, it should have been raised in a posttrial application brought pursuant to CPL 440.10 (see, ...People v Hamlin, 153 AD2d 644, 645).

Section 440.10(1)(h) provides a postjudgment procedure for a claim based on events outside the trial record.

People v. Brown · filed 1991-03-25(1)(h)

Therefore, as this notice relates to conduct which is not part of the trial record, it is clear a notice under CPL 330.30 (1) is misplaced and instead should have been made postjudgment under CPL 440.10 (1) (h).

Section 440.10 provides a postjudgment remedy for claims based on matters outside the record on direct appeal.

People v. Clark · filed 1991-07-15

The defendant’s allegations in his pro se brief that counsel coerced him into pleading guilty and endeavored to extort money from him and his family, involve matters that are dehors the record and which cannot be considered on direct appeal. The defendant’s appropriate remedy is to make a postjudgment application pursuant to CPL 440.10 (see, People v Ricks, 135 AD2d 844).

Section 440.10 provides a proceeding to establish a challenge to a jury-trial waiver that depends on facts outside the trial record.

People v. Stephens · filed 1991-10-04

...cannot be determined on this record and must be established, “if at all, by facts outside the trial record in a proceeding maintainable under CPL 440.10” (People v Johnson, 51 NY2d 986, 988; see also, People v McDaniel, 161 AD2d 1125, lv denied 76 NY2d 861; People v Davidson, 123 AD2d 782, 783, lv denied 69 NY2d 826).

CPL 440.10 is the proper vehicle for ineffective-assistance claims based on matters outside the trial record.

People v. Fowler · filed 1991-10-22

The particular deficiencies he cites are more properly the subject of a motion pursuant to CPL 440.10, as they relate to matters outside the record.

CPL 440.10 is the proper vehicle for plea claims that cannot be reviewed on the appellate record.

People v. Winters · filed 1991-11-15

Defendant’s contentions that he was unaware of the sentencing possibilities when he took the plea and that his plea was induced by the promise of probation by the District Attorney’s Office cannot be reviewed on this record and are more properly raised in a motion pursuant to CPL 440.10.

Section 440.10 provides a postconviction motion for an ineffective assistance claim based on matters outside the record, subject to statutory requirements.

People v. Langhorne · filed 1991-11-25

The appropriate remedy is a postconviction motion pursuant to ...CPL 440.10, provided the statutory requirements are met (CPL 440.30).

CPL 440.10 provides a motion to raise ineffective-assistance allegations that cannot be resolved on the direct appeal record.

People v. Pena · filed 1991-12-10

Defendant’s unsupported allegations that trial counsel failed to provide meaningful representation cannot be resolved on this record, his remedy, if any, being a motion pursuant to CPL 440.10 (see, People v Burton, 168 AD2d 347).

CPL 440.10 provides the appropriate procedure for raising an ineffective assistance claim whose basis is not fully apparent from the record.

People v. Osinoiki · filed 1992-04-20

The defendant’s claim of ineffective assistance of counsel was raised in a postconviction motion under CPL 440.10, the appropriate course where the basis for the claim is not fully apparent from the record (see, People v Brown, 45 NY2d 852, 854; People v Oquendo, 112 AD2d 955; People v Martinez, 111 AD2d 189).

CPL 440.10 is the proper vehicle for an ineffective assistance claim based on facts outside the trial record.

People v. Bagarozy · filed 1992-04-28

This post-verdict motion was improperly brought pursuant to CPL 330.30. The appropriate vehicle by which 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.

Section 440.10 provides a motion to vacate judgment through which a defendant can present material outside the trial record in support of an ineffective assistance claim.

People v. Pampalone · filed 1992-05-07

Defendant’s failure to move pursuant to CPL 440.10 to vacate the judgment on the basis of ineffective assistance of counsel denies this court the opportunity to consider material de hors this record (see, People v Bennett, 157 AD2d 630).

A CPL 440.10 (1) (f) motion is ordinarily needed to raise a matter outside the record, but a stipulation adding the material to the appellate record permits review on direct appeal.

People v. Vacante · filed 1992-11-02(1)(f)

Although ordinarily a motion pursuant to CPL 440.10 (1) (f) would be necessary to raise an issue concerning matters dehors the record, the Court of Appeals has sanctioned the use of stipulations to enlarge appellate records under circumstances identical to those at bar (see, People v Young, 79 NY2d 365, 372).

A motion under section 440.10 is a more appropriate way to raise a Rosario-material claim when the report is outside the appellate record.

People v. Machado · filed 1992-12-28

Therefore, this issue would more appropriately be raised by a motion pursuant to CPL 440.10 (see, People v Woods, 156 AD2d 609; People v Sergi, 96 AD2d 911, 912; cf., People v Vacante, 187 AD2d 470).

Section 440.10 provides a motion for claims that require factual development outside the trial record.

People v. Dupont · filed 1993-05-20

Any claims involving additional factual development outside the present record must be addressed in a CPL 440.10 motion (see, People v Rivera, 71 NY2d 705).

Section 440.10(1)(h) provides a motion to vacate judgment as a remedy for claims based on matters outside the trial record.

People v. Herrington · filed 1993-06-08(1)(h)

Since several of the claims advanced in defendant’s motion to set ... aside the verdict pursuant to CPL 330.30 (1) raised matters not appearing on the face of the record, summary denial of the motion was proper (CPL 330.40 [2] [e] [i]), defendant’s remedy being a motion to vacate the judgment pursuant to CPL 440.10 (1) (h).

CPL 440.10 is the proper procedure for raising an ineffective assistance claim that rests on matters outside the record.

People v. Simon · filed 1993-09-20

We further conclude that since the defendant’s claim of ineffective assistance of counsel appears to rest on matters dehors the record, the proper way to have raised the claim was by a motion pursuant to CPL 440.10 and not by direct appeal.

CPL 440.10 is the proper vehicle for an ineffective-assistance claim that cannot be reviewed on the direct-appeal record.

People v. Martinez · filed 1993-03-02

Similarly, defendant’s claim that he received ineffective assistance of counsel cannot be reviewed on the record before this Court, but is more properly the subject of a CPL 440.10 motion.

CPL 440.10 provides a remedy for ineffective-assistance claims that require factual development outside the trial record.

People v. Santiago · filed 1993-10-21

Insofar as defendant contends that trial counsel failed to reasonably investigate the facts, question potential witnesses or plan trial strategy with him, those claims require additional factual development outside the present record and defendant’s remedy was to move for relief pursuant to CPL 440.10 (see, People v Salgado, 140 AD2d 855, 856, lv denied 72 NY2d 924).

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

People v. Jones · filed 1994-01-13

Defendant’s claim that ineffective assistance of counsel resulted in the denial of his right to testify before the Grand Jury should be raised in the context of a CPL 440.10 motion, an option that defendant may still invoke.

Section 440.10(1)(f) provides a postjudgment remedy for a claimed trial error that the appellate record is too incomplete to review.

People v. Larrabee · filed 1994-02-04(1)(f)

Defendant is relegated to a motion for postjudgment relief pursuant to CPL 440.10 (1) (f) (see, People v Backus, 184 AD2d 231, lv denied 80 NY2d 926).

Section 440.10 provides a way to develop a reviewable record for a claim that trial counsel was ineffective.

People v. Brown · filed 1994-01-11

By failing to challenge the competence of trial counsel pursuant to CPL 440.10, defendant failed to provide this Court with a reviewable record.

Section 440.10 provides a motion to raise an ineffective-assistance claim that cannot be evaluated on the trial record.

People v. Bacic · filed 1994-03-08

Finally, defendant’s claim that he received ineffective assistance of counsel cannot be evaluated on the record. His remedy for such a claim is a CPL 440.10 motion.

Section 440.10 permits a hearing on sworn facts outside the appeal record that could affect the voluntariness of a guilty plea.

People v. Shields · filed 1994-06-09

Given the nature of the non-record facts presented, a hearing should have been held to address the merits of the motion, at least insofar as it is directed to matters affecting the voluntariness of defendant’s guilty plea (see, People v Ferreras, 70 NY2d 630, 631; People v Cramer, 133 AD2d 880, 881, lv denied 70 NY2d 1005).

CPL 440.10 provides a motion to raise ineffective assistance claims based on allegations outside the record.

People v. Gonzalez · filed 1994-07-21

Such contention should have been pursued by way of a CPL 440.10 motion particularly where, as here, allegations of coercion rest on matters outside the record (see, People v Love, 57 NY2d 998; People v Cogswell, 127 AD2d 871).

A CPL 440.10 motion raising an ineffective assistance claim based on matters outside the trial record cannot be denied on the ground that the claim was directly appealable.

People v. Leka · filed 1994-11-28

The defendant also contends that the Supreme Court erred in denying, without a hearing, his motion to set aside the verdict pursuant to CPL 330.30 and his motion to set aside the judgment pursuant to CPL 440.10, both of which raised claims of ineffective assistance of counsel due to a conflict of interest and newly discovered evidence. ... Similarly, the Supreme Court erred in denying that ... branch of the defendant’s motion to set aside the judgment which raised an ineffective assistance of counsel claim on the ground that the claim was directly appealable.

CPL 440.10 is the proper vehicle for ineffective-assistance claims based on matters outside the trial record.

People v. Geer · filed 1995-03-02

The remainder of the alleged deficiencies defendant ascribes to his trial counsel’s performance are either based upon matters outside the record and more properly raised in the context of a motion pursuant to CPL 440.10, or constitute only losing strategies which would have appeared plausible when they were adopted.

Section 440.10 provides a proceeding to prove a challenge to a jury-trial waiver that depends on facts outside the trial record.

People v. Tamarez · filed 1995-03-21

Moreover, the assertion that his participation in the waiver was not knowing and voluntary implicates his relationship with his trial attorney and is to be proved, if at all, by facts dehors the trial record in a proceeding pursuant to CPL 440.10 (People v Magnano, supra).

A defendant who does not seek relief under CPL 440.10 may lack a record adequate for appellate review of an ineffective assistance claim.

People v. Brooks · filed 1994-12-20

By failing to seek redress pursuant to CPL 440.10, defendant has failed to present a record adequate to permit review of his claim of incompetent trial representation (People v Brown, 45 NY2d 852, 853-854; People v Dowdy, 196 AD2d 747, lv denied 82 NY2d 849), and, on the present record, no basis exists to find that the presumption of competent representation has been overcome (People v Kirkland, 192 AD2d 414, lv denied 81 NY2d 1075).

Section 440.10 provides a motion to vacate a judgment through which a defendant may develop background facts supporting an ineffective assistance claim.

People v. Buckley · filed 1995-01-19

Defendant has denied this Court the opportunity to consider additional background facts which might have been developed by failing to make the appropriate CPL 440.10 motion to vacate the judgment on the ground now asserted of ineffective assistance of trial counsel (People v Lawton, 159 AD2d 302, lv denied 76 NY2d 738).

CPL 440.10 provides a motion to develop a further record when the existing record does not support a defendant’s claim.

People v. Moss · filed 1995-03-17

If defendant wishes to develop a further record, his remedy is to make a motion pursuant to CPL 440.10.

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

People v. Moye · filed 1995-05-15

While the defendant contends that counsel failed to inform her of her right to testify at trial over his objection, the record does not contain sufficient information to review this contention, which should be raised in a postjudgment motion pursuant to CPL 440.10 (People v Smith, 112 AD2d 389).

Section 440.10 provides a motion to vacate a conviction for ineffective-assistance claims based on matters outside the direct-appeal record.

People v. Diaz · filed 1995-10-10

Some are belied by the record and the remainder cannot be entertained on this direct appeal since they are based on matters dehors the record and, in the absence of a motion to vacate the conviction pursuant to CPL 440.10, counsel’s tactics are left unexplained (see, People v Brown, 45 NY2d 852, 853-854).

Section 440.10 provides a postjudgment motion to develop facts supporting an ineffective assistance claim based on counsel’s conduct outside the trial record.

People v. Parker · filed 1995-10-12

Where,. as here, a claim of ineffective assistance of counsel is premised upon omissions of counsel allegedly occurring outside the trial record, additional facts supporting the claim should be developed through a postjudgment motion pursuant to CPL 440.10,* rather than a direct appeal (see, e.g, People v Love, 57 NY2d 998, 999-1000; People v Perez [Cocco], 198 AD2d 540, 542, Iv denied 82 NY2d 923, 929; People v Garcia, 187 AD2d 868, Iv denied 81 NY2d 885).

CPL 440.10 provides the motion to vacate judgment through which a defendant must raise issues outside the direct appeal record.

People v. Robinson · filed 1995-11-15

A defendant who seeks to raise an issue that is outside the record must raise it within the context of a CPL 440.10 motion to vacate the judgment.

Section 440.10 requires claims of improper or prejudicial conduct outside the record to be raised by a motion to vacate judgment.

Ball v. Senkowski · filed 1995-11-18

Under New York law, claims alleging improper or prejudicial conduct outside the record are not reviewable on direct appeal and must be raised by way of a motion pursuant to New York Criminal Procedure Law § 440.10.