N.Y. Crim. Proc. Law § 440.10

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

People v. Nusbaum · filed 1995-12-07

A CPL 440.10 motion is the appropriate vehicle to present ineffective assistance claims relating to matters outside the record (see, People v Garcia, 187 AD2d 868, lv denied 81 NY2d 885; see also, People v Perez, 198 AD2d 540, lv denied 82 NY2d 929).

CPL 440.10 provides a postjudgment motion in which a defendant can develop the factual record needed for an ineffective-assistance claim.

People v. Renaud · filed 1995-10-10

The relief defendant seeks—a new trial on the ground of ineffective assistance of counsel—can be better pursued in a postjudgment motion pursuant to CPL 440.10 in which an appropriate factual record might be developed (see, People v Love, 57 NY2d 998, 1000; People v Brown, 45 NY2d 852, 853-854).

Section 440.10(1)(f) provides a postjudgment motion for a claim about the trial court’s response to jury questions when the factual record is inadequate for appellate review.

People v. Dixon · filed 1995-11-15(1)(f)

Because defendant has not met his burden to present a clear factual record for review of his contention that County Court violated CPL 310.30 in responding to questions from the jury, his contention may only be pursued by a motion for postjudgment relief pursuant to CPL 440.10 (1) (f) (see, People v Larrabee, 201 AD2d 924, lv denied 83 NY2d 855).

Section 440.10 provides a way to raise a claim that cannot be reviewed on direct appeal because the appellate record is silent on the issue.

People v. Barlow · filed 1995-12-22

The record on appeal is insufficient for us to review the contention of defendant, made in his pro se supplemental brief, that the court improperly denied his pro se motion for reassignment of counsel. Because the record is silent on that issue, it should be raised in a motion pursuant to CPL 440.10.

Section 440.10 provides a postjudgment motion for a claim about counsel's advice when the appellate record is insufficient to review it.

People v. Belair · filed 1996-04-19

The contention that trial counsel failed to advise defendant that he could not receive credit for time served cannot be reviewed because the record is silent on that issue; there must be "a factual record sufficient to permit appellate review” (People v Kinchen, 60 NY2d 772, 774). Therefore, defendant is relegated to a motion for postjudgment relief (see, CPL 440.10; People v Larrabee, 201 AD2d 924, lv denied 83 NY2d 855; see also, People v Ramos, supra, at 642-643).

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

People v. Hodge · filed 1996-04-19

The contention that trial counsel failed to advise defendant that his sentence would run concurrently with a sentence he was serving on a prior conviction is based upon matters outside the record. Therefore, defendant is relegated to a motion for postjudgment relief (see, CPL 440.10; People v Larrabee, 201 AD2d 924, lv denied 83 NY2d 855; see also, People v Ramos, 63 NY2d 640).

Section 440.10(1)(f) provides a postjudgment motion as the remedy for claims based on matters outside the trial record.

People v. Taylor · filed 1996-04-19(1)(f)

The contentions of defendant in his pro se briefs that the prosecutor knowingly elicited perjured testimony and abused the use of a subpoena duces tecum are based upon matters outside the record. Defendant’s remedy with respect to those contentions is a motion for postjudgment relief (see, CPL 440.10 [1] [f]; People v Larrabee, 201 AD2d 924, lv denied 83 NY2d 855).

Section 440.10 provides the motion procedure for raising claims based on matters outside the appellate record.

People v. Ryan · filed 1996-07-03

As to matters outside of the record, we agree that they can only be considered by way of a motion made to vacate the conviction pursuant to CPL 440.10 (see, People v Garcia, 187 AD2d 868, lv denied 81 NY2d 885; People v Garner, 99 AD2d 596). Thus, we will not consider the Rosario material which defendant alleges that his counsel failed to use to impeach prosecution witnesses.

CPL 440.10 provides a proceeding to develop an ineffective-assistance claim that cannot be demonstrated on the trial record.

People v. Carver · filed 1996-12-19

Defendant’s claim that counsel’s insufficient familiarity with the facts of the case rendered him ineffective is not demonstrable on the instant record, and should have been developed in a proceeding under CPL 440.10 (see, People v Brown, 45 NY2d 852, 853-854).

Section 440.10(1)(f) and (h) permits consideration of a supported claim of prosecutorial misconduct based on evidence outside the trial record.

People v. Peralta · filed 1996-11-27(1)(f), (1)(h)

Contrary to County Court’s conclusion, it is our view that defendants’ pro se motion, supported by competent evidence of prosecutorial misconduct not appearing on the trial record (see, CPL 440.10 [1] [f], [h]), raises serious legal issues.

Section 440.10 provides the motion procedure for a claim of inadequate counsel advice that depends on proof outside the trial record.

People v. Yousef · filed 1997-02-07

To the extent that defendant contends that his decision to waive his right to a jury trial was based on inadequate advice from counsel, the contention rests on proof outside the record and must therefore be raised by a motion pursuant to CPL 440.10 (see, People v Tamarez, 213 AD2d 261, 262, lv denied 85 NY2d 981).

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

People v. Armstrong · filed 1997-03-17

Further, since the facts which formed the basis of the defendant’s claim of ineffective assistance of counsel did not appear in the trial record, the trial court erred in granting relief on that basis in the absence of a motion pursuant to CPL 440.10 (see, People v Grossfeld, 216 AD2d 319; People v Leka, 209 AD2d 723).

Section 440.10 provides a motion for challenging the voluntariness of a plea when the challenge depends on matters outside the record.

People v. McNeil · filed 1997-11-19

Because defendant’s challenge to the voluntariness of the plea involves matters outside ... the record, that challenge should be raised on a CPL 440.10 motion (see, People v Seminara, 53 AD2d 678).

Section 440.10 provides a motion to vacate a conviction for an ineffective-assistance claim based on facts outside the trial record; without that motion, the claim is not reviewable on direct appeal.

People v. Smith · filed 1997-10-30

Since defendant did not move to vacate the judgment of conviction pursuant to CPL 440.10, his contention that he was denied the effective assistance of counsel is not reviewable on direct appeal because it is based on facts dehors the record and trial counsel has not had an opportunity to explain his trial tactics (compare, People v Love, 57 NY2d 998, with People v Brown, 45 NY2d 852).

Section 440.10 provides a motion procedure for developing the record needed to assess an ineffective assistance claim that cannot be resolved on the existing record.

People v. Fuentes · filed 1998-01-27

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

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

People v. Collins · filed 1998-01-29

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).

Section 440.10 provides a procedure for raising claims based on facts outside the appellate record.

People v. Brzezicki · filed 1998-04-29

Defendant’s contention that the prospective juror was excused on defendant’s peremptory challenge is based upon facts outside the record and therefore is properly the subject of a motion brought under CPL 440.10 (see, People v Robinson, 221 AD2d 1029).

Section 440.10(1)(h) provides a postjudgment motion for claims that depend on matters outside the record.

People v. Gilchrist · filed 1998-06-10(1)(h)

To the extent that the contention that defense counsel misinformed defendant with respect to his sentence is based on matters outside the record, that contention can only be considered in a motion for postjudgment relief (see, CPL 440.10 [1] [h]; People v Hodge, 226 AD2d 1124, lv denied 88 NY2d 986; People v Belair, 226 AD2d 1105, 1106).

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

People v. Martin · filed 1998-09-22

Defendant’s claims of ineffective assistance of counsel would require a CPL 440.10 motion in order to develop the record.

Section 440.10 provides the motion procedure for raising a claim about a plea agreement that depends on matters outside the record.

People v. Clark · filed 1998-10-05

The defendant’s claim that shock ... incarceration was part of the plea agreement rests upon matters which are dehors the record and may only be raised upon a motion pursuant to CPL 440.10 (see, People v Lebrun, 234 AD2d 392).

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

People v. Sainz · filed 1998-10-06

Defendant’s contention that his attorney was ineffective for failing to advise him that the court was not bound to impose the sentence that the People had agreed to recommend would require a CPL 440.10 motion because it is based on facts dehors the record (People v Brown, 45 NY2d 852; see also, People v Ramos, 63 NY2d 640).

CPL 440.10 is the procedure for addressing an ineffective-assistance claim based entirely on facts outside the record.

People v. Santana · filed 1998-10-27

Defendant’s claim of ineffective assistance of counsel is based entirely on alleged facts outside the record, and thus should be addressed in a CPL 440.10 motion.

CPL 440.10 provides a motion to develop the record for an ineffective assistance claim.

People v. Johnson · filed 1998-10-13

Defendant’s ineffective assistance claim would require a CPL 440.10 motion to develop the record (People v Love, 57 NY2d 998).

Section 440.10 provides a motion to develop a further record for an ineffective-assistance claim involving counsel’s strategy.

People v. Montalvo · filed 1998-11-17

Defendant’s claim of ineffective assistance of counsel involves matters of strategy and 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).

CPL 440.10 provides a motion to develop the record for ineffective assistance claims concerning counsel’s strategy.

People v. Acevedo · filed 1998-12-17

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

Section 440.10 provides the motion required for an ineffective-assistance claim involving counsel’s strategy.

People v. Alberto · filed 1998-12-22

Defendant’s ineffective assistance of counsel claim involves a matter of strategy and thus would require a motion pursuant to CPL 440.10.

Section 440.10 provides a motion for raising claims that cannot be reviewed on the record of a direct appeal.

People v. Dunn · filed 1999-05-07

The contentions that defendant was denied effective assistance of counsel because he had a conflict of interest with his attorney and because the prosecutor improperly promised codefendants leniency in exchange for testimony against defendant are not reviewable on this record. The proper vehicle for raising such issues is a CPL 440.10 motion.

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

People v. Albert · filed 1999-06-17

Defendant’s remaining complaints about his counsel involve matters dehors the record and would thus require a motion pursuant to CPL 440.10.

CPL 440.10 is the proper vehicle for raising a claim that cannot be reviewed on direct appeal because the record does not show whether the defendant was present.

People v. DePillo · filed 1999-06-18

That contention cannot be reviewed on this record because the record does not disclose whether defendant was present. The proper vehicle for defendant to raise that contention is a CPL 440.10 motion.

Section 440.10 provides a motion to develop the record for an ineffective assistance claim that cannot be resolved on the existing record.

People v. Martin · filed 1999-06-03

Defendant’s ineffective assistance claim would require a CPL 440.10 motion in order to develop the record.

CPL 440.10 provides a motion to develop the record for an ineffective assistance claim involving trial strategy.

People v. Vukel · filed 1999-07-22

Since defendant’s ineffective assistance claim involves matters of trial strategy, it would require a CPL 440.10 motion in order to amplify the record.

An ineffective assistance claim that relies on facts outside the record requires a motion under Section 440.10.

People v. Montes · filed 1999-10-12

To the extent that defendant’s ineffective assistance of ... counsel claim makes factual assertions unsupported by the record, such claim would require a motion pursuant to CPL 440.10.

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

People v. Bullock · filed 1999-12-28

Defendant’s ineffective assistance claim is based on factual assertions dehors the record and thus would require a motion pursuant to CPL 440.10.

A CPL 440.10 motion is the appropriate way to develop additional facts needed for an ineffective assistance claim, particularly facts about counsel’s strategy.

People v. Alvarado · filed 2000-02-01

Defendant’s ineffective assistance claim would require the development of additional facts by way of an appropriate motion pursuant to CPL 440.10, particularly with regard to matters of strategy (see, People v Love, 57 NY2d 998).

Section 440.10 provides a motion to develop the record for an ineffective assistance claim that depends on matters outside the trial record.

People v. Accove · filed 1999-09-23

Defendant’s ineffective assistance of counsel claim would require a CPL 440.10 motion in order to develop the record as to matters of strategy and the availability of a potential medical expert witness.

CPL 440.10 provides the motion required for an ineffective-assistance claim involving trial strategy when an amplified record is needed.

People v. Smith · filed 1999-10-07

Since defendant’s claim of ineffective assistance of counsel involves matters of trial strategy, it would require a CPL 440.10 motion in which an amplified record would be available.

Section 440.10 provides the motion needed to develop the record on trial counsel’s strategy for an ineffective assistance claim.

People v. Shabazz · filed 1999-09-28

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

A CPL 440.10 motion is required to expand the record for an ineffective-assistance claim.

People v. Coombs · filed 1999-10-26

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

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

People v. Morgan · filed 2000-04-06

The proper vehicle by which to make such factual claims is a motion pursuant to CPL 440.10.

Section 440.10 provides a motion to expand the record for an ineffective-assistance claim involving counsel’s strategy and facts outside the trial record.

People v. Cosby · filed 2000-04-25

Defendant’s ineffective assistance claim would require the record to be expanded by way of a CPL 440.10 motion, because it concerns matters of strategy and contains factual assertions dehors the record as to such matters as counsel’s consultations with defendant.

Section 440.10(2)(b) permits a motion based on matters outside the record combined with closely related matters discernible on the record.

People v. Hoyte · filed 2000-06-08(2)(b)

Contrary to the People’s assertion, the court properly entertained defendant’s motion to vacate the judgment of conviction made on the ground of ineffective assistance, since it was based upon a combination of matters dehors the record and closely related matters discernible on the record (see, CPL 440.10 [2] [b]).

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

People v. Williams · filed 2000-06-16

Defendant’s contention that defense counsel should have presented expert testimony concerning the effects of cocaine use by the victim in order to provide exculpatory or mitigating evidence concerns matters outside the record and is therefore properly addressed in a CPL 440.10 motion (see, People v Snitzel, 270 AD2d 836; People v Chiera, 255 AD2d 685, 686).

Section 440.10 provides the motion required for an ineffective assistance claim that rests largely on facts outside the record and matters of strategy requiring explanation.

People v. Mathien · filed 2000-10-10

Since defendant’s ineffective assistance claim rests largely on facts dehors the record and matters of strategy of a type requiring explanation, it would require a CPL 440.10 motion.

Section 440.10 provides a motion procedure for developing facts needed to review an ineffective assistance claim when the existing record is insufficient.

People v. Riley · filed 2000-04-13

Defendant’s claim that he was denied effective assistance because his counsel did not request the court to recuse itself would require a CPL 440.10 motion in order to farther develop the record as to the surrounding circumstances.

Section 440.10 provides a motion to develop the record when an ineffective-assistance claim turns on counsel’s tactical decision.

People v. Robinson · filed 2000-05-09

Defendant’s claim that defense counsel was ineffective for failing to secure a witness’s attendance by compulsion involves a tactical decision by counsel that would require a CPL 440.10 motion in order to further develop the record (see, People v Brown, 45 NY2d 852).

Section 440.10 permits a motion to develop the record when an ineffective assistance claim depends on counsel’s reasons for trial strategy.

People v. Lemma · filed 2000-06-29

Since defendant’s ineffective assistance claim rests primarily on matters of trial strategy, it would require a CPL 440.10 motion so that the record could be expanded with respect to the reasons for trial counsel’s strategic choices.

Section 440.10 provides a motion procedure to expand the record for an ineffective assistance claim based on counsel’s strategy.

People v. Munden · filed 2000-10-10

Defendant’s ineffective assistance claim rests on matters of strategy of a type that would require expansion of the record by way of a CPL 440.10 motion.

Section 440.10(1)(f) provides a postjudgment motion as the remedy for claims based on matters outside the appellate record.

People v. Walker · filed 2000-09-29(1)(f)

The contentions of defendant in his pro se supplemental brief that ineffective assistance of counsel and prosecutorial misconduct deprived him of a fair trial are based on matters outside the record. Defendant’s remedy with respect to those contentions is a motion for postjudgment relief (see, CPL 440.10 [1] [f]).

Section 440.10(1)(h) is a proper vehicle for a constitutional challenge to a judgment based on a prior conviction reversed after sentencing, because the reversal is outside the trial record.

People v. Cabassa · filed 2000-10-24(1)(h)

This CPL 440.10 and 440.20 motion is the proper vehicle for defendant’s current arguments. The Federal conviction was not reversed until after the defendant was sentenced. Thus, these facts do not appear on the face of the record.

Section 440.10 is the proper vehicle for an ineffective assistance claim based on matters outside the record.

People v. Green · filed 2000-11-13

The further contention of defendant in his pro se supplemental brief that he was deprived of effective assistance of counsel based on counsel’s failure to interview witnesses concerns matters outside the record and is therefore properly addressed in a CPL 440.10 motion (see, People v Snitzel, 270 AD2d 836, lv denied 95 NY2d 804; People v Chiera, 255 AD2d 685, 686).

CPL 440.10 provides a procedure for an ineffective assistance claim that requires counsel to explain a strategic decision outside the existing record.

People v. Figueroa · filed 2000-12-21

This issue would require a CPL 440.10 motion in order to afford counsel an opportunity to explain his strategy.

Section 440.10 provides a motion procedure for ineffective assistance claims based on counsel’s alleged omissions outside the record.

People v. Booker · filed 2001-02-08

Defendant’s ineffective assistance of counsel claim has no support in the record and, to the extent that the claim is based on omissions of counsel which allegedly occurred outside the record, the claim should be pursued in a CPL 440.10 motion rather than on direct appeal (see, People v Gonzalez, 206 AD2d 669; People v Colon, 193 AD2d 974, lv denied 82 NY2d 752).

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

People v. Wooten · filed 2001-05-02

The contention of defendant that he was denied effective assistance of counsel based on defense counsel’s failure to move to dismiss the indictment on speedy trial grounds is based on material dehors the record, and thus the appropriate procedural vehicle is a motion pursuant to CPL 440.10 (see, People v Darnell, 146 AD2d 583, 584, lv denied 73 NY2d 976; People v Miller, 142 AD2d 970).

Section 440.10 is the proper procedure for raising a Brady claim based on material outside the trial record.

People v. Wilson · filed 2001-05-29

Defendant’s contention that certain medical records of the complainant purportedly constituting Brady material (Brady v Maryland, 373 US 83) were improperly withheld is dehors the trial record and should have been raised as a CPL 440.10 motion (see, People v Love, 57 NY2d 998; see also, People v Kronberg, 243 AD2d 132, 152, lv denied 92 NY2d 880).

CPL 440.10 is the required procedure for an ineffective assistance claim when the existing record cannot show why counsel abandoned a suppression hearing.

People v. Brown · filed 2001-06-14

While defendant claims he was deprived of effective assistance of counsel because his attorney failed to pursue the suppression, it is impossible on the existing record to determine the reason for the abandonment and thus a CPL 440.10 motion would be required.

Section 440.10 provides a motion to develop the record when an ineffective assistance claim turns on counsel’s strategy.

People v. Monegro · filed 2001-01-09

Defendant’s claims of ineffective assistance of counsel involve matters of strategy that would require a CPL 440.10 motion in order to amplify the record.

Section 440.10 provides a motion to determine whether counsel’s alleged error was part of a deliberate strategy when the direct-appeal record cannot resolve an ineffective-assistance claim.

People v. Rutledge · filed 2001-01-30

Under the circumstances of this case, defendant’s ineffective assistance of counsel claim would require a motion pursuant to CPL 440.10 for the purpose of determining whether the alleged error was part of a deliberate strategy (see, People v Rivera, 71 NY2d 705, 708).

Section 440.10 requires a motion to develop the record for an ineffective assistance claim resting primarily on matters of trial strategy.

People v. Coleman · filed 2001-05-24

Since defendant’s ineffective assistance claim rests primarily on matters of trial strategy, it would require a CPL 440.10 motion in order to further develop the record.

Section 440.10 provides a motion to develop the record for an ineffective-assistance claim involving trial strategy.

People v. Ferguson · filed 2001-04-12

Defendant’s ineffective assistance claim involves a matter of trial strategy that would require a motion pursuant to CPL 440.10 in order to further develop the record (see, People v Rivera, 71 NY2d 705, 709).

Section 440.10 provides the procedure for an ineffective assistance claim that rests largely on facts outside the record.

People v. Lesane · filed 2001-06-26

Defendant’s ineffective assistance claim rests largely on facts dehors the record and thus would require a CPL 440.10 motion.

CPL 440.10 provides the procedural vehicle for a conflict-of-interest claim based on matters outside the trial record.

People v. Englert · filed 2001-07-03

Defendant’s contention that defense counsel had a conflict of interest “is based on material dehors the record, and thus the appropriate procedural vehicle is a motion pursuant to CPL 440.10”

CPL 440.10 provides a motion procedure for ineffective assistance claims that require facts outside the direct appeal record.

People v. Hinds · filed 2001-09-20

Defendant’s ineffective assistance of counsel claim is unreviewable on direct appeal since it primarily involves questions of trial strategy and matters dehors the record regarding communications between defendant and counsel, and these are the type of matters that would require expansion of the record by way of a CPL 440.10 motion (see, People v Rivera, 71 NY2d 705, 709).

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

People v. Robertson · filed 2001-09-28

The further contention of defendant that he was deprived of effective assistance of counsel based on defense counsel’s failure to review possible defenses for trial concerns matters outside the record and is therefore properly addressed in a CPL 440.10 motion (see, People v Snitzel, 270 AD2d 836, lv denied 95 NY2d 804).

CPL 440.10 provides a way to develop the record for an ineffective assistance claim involving trial strategy.

People v. Martinez · filed 2001-12-20

Defendant’s ineffective assistance claim largely involves matters of strategy, including the question of whether an alibi witness should have been called, and thus would require expansion of the record by way of a CPL 440.10 motion.

Section 440.10 provides a motion to raise claims based on matters outside the appellate record.

People v. Palmateer · filed 2002-01-17

Of the eight issues raised by defendant in his pro se letter, six concern matters which are dehors the record and are unpreserved by an appropriate CPL 440.10 motion (see, e.g., People v Johnson, 288 AD2d 501), one is belied by the record, and the other is meritless.

CPL 440.10 provides a motion to expand the record when an ineffective assistance claim primarily concerns matters outside the existing record.

People v. Hagood · filed 2002-02-19

Since defendant’s ineffective assistance claim primarily involves matters dehors the record, including questions of strategy and consultations between defendant and her counsel, it would require a CPL 440.10 motion in order to expand the record.

Section 440.10 provides an appropriate motion when an ineffective assistance claim requires a hearing to develop facts outside the appellate record.

People v. Herne · filed 2002-06-13

Since defendant’s claims in this regard clearly involve matters that would require a hearing to expand the record, a CPL 440.10 motion would have been appropriate (see, People v Ortiz, 143 AD2d 150, 151, lv denied 72 NY2d 1048; People v Williams, 140 AD2d 969, 970).

Section 440.10 provides a motion to expand the record when an ineffective-assistance claim requires evidence about counsel’s strategy.

People v. Delgado · filed 2002-03-12

Furthermore, defendant’s claim that trial counsel’s decision to waive these two issues constituted ineffective assistance raises questions of strategy that would require a CPL 440.10 motion in order to expand the record.

Section 440.10 provides a way to raise an ineffective assistance claim when the record must be expanded to explain trial counsel’s tactics.

People v. Gilbert · filed 2002-06-27

However, defendant’s ineffective assistance claim should have been raised via a CPL 440.10 motion so that the record could be expanded to permit trial counsel to explain his trial tactics.

CPL 440.10 provides a way to raise an ineffective assistance claim when counsel needs to explain a decision outside the trial record.

People v. Farmer · filed 2002-06-27

Defendant’s claim that counsel was ineffective for failing to request an inquiry or discharge of the juror should have been brought by way of a CPL 440.10 motion in which counsel could have explained the reason for his action (see, People v Rivera, 71 NY2d 705, 709; People v Love, 57 NY2d 998, 1000).

Section 440.10 provides a collateral motion in the trial court for an ineffective assistance claim based on evidence outside the trial record.

Hammock v. Walker · filed 2002-09-17

Petitioner’s ineffective assistance of trial counsel claims based on the failure to produce evidence should Jiave been raised by a CPL § 440.10 collateral attack in the trial court.

Section 440.10 governs motions to vacate a judgment based on factual assertions outside the record.

People v. Villegas · filed 2002-10-01

Since defendant’s motions, made at the time of sentencing, to set aside the verdict on the ground of ineffective assistance of counsel were based on factual assertions outside the record, these motions constituted, at best, motions to vacate judgment pursuant to CPL 440.10 (see People v Wolf, 98 NY2d 105, 119; People v Kronberg, 243 AD2d 132, 135, 152, lv denied 92 NY2d 880), and since defendant failed to obtain permission from this Court to appeal, the issues raised in his motions are unreviewable (CPL 460.15).

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

People v. Skye · filed 2002-10-01

The further contention of defendant that he was denied effective assistance of counsel based on defense counsel’s alleged failure to advise him of the mandatory period of postrelease supervision involves matters outside the record on appeal and therefore must be pursued by way of a CPL 440.10 motion (see People v Booker, 280 AD2d 785, 786, lv denied 96 NY2d 916; see also People v Robertson, 286 AD2d 863, lv denied 97 NY2d 760; People v Snitzel, 270 AD2d 836, 836-837, lv denied 95 NY2d 804).

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

People v. Thorn · filed 2002-10-01

Finally, the contention of defendant that he was denied effective assistance of counsel based on defense counsel’s failure to advise him of the sentence that the court was contemplating is based on matters outside the record and thus must be raised by way of a motion pursuant to CPL 440.10 (see People v Robertson, 286 AD2d 863, lv denied 97 NY2d 760).

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

People v. Ledesma · filed 2002-12-10

Since defendant’s claim of ineffective assistance of counsel primarily involves matters outside the record, including trial counsel’s strategic decisions as to whether to call certain witnesses, it should have been brought by way of a CPL 440.10 motion.

Section 440.10 provides a motion to expand the record with trial counsel’s explanation when an ineffective assistance claim turns on counsel’s strategy.

People v. Rosario · filed 2002-10-01

Defendant’s ineffective assistance claim involves matters of strategy and thus would require a CPL 440.10 motion in order to expand the record by way of an explanation for trial counsel’s decisions (see People v Love, 57 NY2d 998).

Section 440.10(2)(b) does not bar a motion based on matters outside the record that could not be reviewed on direct appeal.

People v. Mendoza · filed 2002-10-21(2)(b)

Although discussion of the issue of whether the defendant was entitled to the Spanish interpreter appears on the record, the defendant’s claim involves affidavits and other matters dehors the record which could not be reviewed on direct appeal (see People v Rivera, 71 NY2d 705, 708; People v Jones, 55 NY2d 771, 773; People v Brown, 45 NY2d 852; People v Delarosa, 287 AD2d 735, 736). Thus, the defendant was not procedurally barred from moving pursuant to CPL 440.10 to vacate the judgment of conviction.

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

People v. Kazmirski · filed 2002-11-15

The further contention of defendant that he was denied effective assistance of counsel based on defense counsel’s alleged failure to advise him of the mandatory period of post-release supervision involves matters outside the record and therefore must be pursued by way of a CPL 440.10 motion (see People v Booker, 280 AD2d 785, 786, lv denied 96 NY2d 916; see also People v Robertson, 286 AD2d 863, lv denied 97 NY2d 760; People v Snitzel, 270 AD2d 836, 836-837, lv denied 95 NY2d 804).

Section 440.10 is the proper motion procedure for raising a claim that depends on matters outside the trial record.

People v. Thomas · filed 2002-11-15

The further contention of defendant that defense counsel denied him the right to testify involves matters outside the record and thus is properly raised by way of a motion pursuant to CPL 440.10 (see generally People v Speed, 226 AD2d 1090, 1091, lv denied 88 NY2d 969).

Section 440.10 provides a way to raise a claim that depends on information outside the appellate record.

People v. Hines · filed 2002-12-30

Because the information upon which the court’s finding is based is outside the record on appeal, we are unable to review defendant’s present contention. The proper vehicle for defendant’s contention would be by way of a motion pursuant to CPL 440.10.

Section 440.10 (1) (f) provides a postjudgment motion route for a defendant whose claim of absence from a Sandoval hearing cannot be resolved on the appellate record.

People v. Davis · filed 2003-02-07(1)(f)

“Defendant is relegated to a motion for postjudgment relief pursuant to CPL 440.10 (1) (f)” (People v Larrabee, 201 AD2d 924, 924, lv denied 83 NY2d 855).

Section 440.10 provides a motion to develop facts outside the trial record when an ineffective-assistance claim depends on trial strategy or discussions between defendant and counsel.

People v. Diaz · filed 2003-03-04

Defendant’s ineffective assistance of counsel claim is unreviewable on direct appeal since it primarily involves questions of trial strategy and matters outside the record, especially with regard to differences defendant and counsel may have had concerning the decision that defendant would not testify, and these are the types of matters that would require expansion of the record by way of a CPL 440.10 motion (see People v Rivera, 71 NY2d 705, 709 [1988]).

CPL 440.10 provides a way to develop facts outside the appellate record when an ineffective assistance claim depends on disputed facts.

People v. Harrison · filed 2003-04-10

However, under the circumstances presented, this claim would require a CPL 440.10 motion to expand the record, since it is not at all clear whether any such motion would have been successful, given the conflicting factual assertions as to the circumstances of defendant’s failure to so testify (see People v Love, 57 NY2d 998 [1982]).

Section 440.10 provides the procedure for raising an ineffective assistance claim that depends on facts outside the trial record.

People v. Niang · filed 2003-05-01

Defendant’s ineffective assistance of counsel claim should have been raised by way of a CPL 440.10 motion (see People v Love, 57 NY2d 998 [1982]) because his argument that counsel provided deficient representation when he asked defendant questions on direct examination that opened the door to damaging evidence depends on whether or not defendant had correctly informed counsel of the pertinent facts and on what other information was available to counsel regarding defendant’s prior record.

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

People v. Shorter · filed 2003-05-02

We are unable to address that contention, however, because it involves matters outside the record. Defendant’s remedy is by way of a motion pursuant to CPL 440.10 (see People v Bennett, 277 AD2d 1008 [2000], lv denied 96 NY2d 780 [2001]).

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

People v. Sheppard · filed 2003-06-13

The further contention of defendant that he was denied effective assistance of counsel because defense counsel failed to meet with him before the time of the plea is based upon matters outside the record. Thus, to the extent that defendant’s contention survives the plea (see Burke, 256 AD2d 1244 [1998]), it is properly addressed in a motion pursuant to CPL 440.10 (see People v Pike, 254 AD2d 727, 729 *842[1998]; People v Speed, 226 AD2d 1090, 1091 [1996], lv denied 88 NY2d 969 [1996]).

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

People v. Royal · filed 2003-06-13

The further contention of defendant that he was denied effective assistance of counsel involves matters outside the record on appeal and therefore must be raised by way of a motion pursuant to CPL 440.10 (see People v Skye, 298 AD2d 889, 890 [2002]).

A CPL 440.10 motion is the way to pursue an ineffective-assistance claim involving matters outside the appellate record.

People v. Cise · filed 2003-06-13

The further contention of defendant that he was denied effective assistance of counsel because defense counsel allegedly failed to advise him of the mandatory period of postrelease supervision “involves matters outside the record and therefore must be pursued by way of a CPL 440.10 motion” (Kazmirski, 299 AD2d at 827).

A CPL 440.10 motion is required to expand the record when an ineffective assistance claim depends on trial counsel’s strategic choices that counsel must explain.

People v. Powell · filed 2003-04-15

Defendant’s claim that counsel was ineffective is based primarily upon strategic choices made by counsel. Accordingly, a CPL 440.10 motion would be required in order to expand the record so that trial counsel may explain his decisions (see People v Love, 57 NY2d 998 [1982]).

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

People v. Vanille · filed 2003-07-03

The further contention of defendant that he was denied effective assistance of counsel based on defense counsel’s alleged failure to advise him of the mandatory period of postrelease supervision involves matters outside the record and therefore must be raised by way of a motion pursuant to CPL 440.10 (see People v Kazmirski, 299 AD2d 826, 827 [2002], lv denied 99 NY2d 583 [2003]; Skye, 298 AD2d at 890).

Section 440.10 provides a motion to expand the record when an ineffective assistance claim requires evidence about counsel’s strategic decisions.

People v. Baher · filed 2003-09-16

Defendant’s ineffective assistance of counsel claims would require a CPL 440.10 motion so as to expand the record as to counsel’s strategic decisions.

Section 440.10 provides a motion to raise a claim to the extent it depends on material outside the trial record.

People v. Harris · filed 2003-11-21

Moreover, to the extent that defendant’s contention is based upon material outside the trial record, it is more appropriately raised in a motion pursuant to CPL 440.10 (see People v Wilson, 283 AD2d 339, 340 [2001], lv denied 97 NY2d 644 [2001]).

CPL 440.10 provides the motion needed to raise an ineffective assistance claim that rests primarily on matters outside the record.

People v. Lopez · filed 2003-12-11

Since defendant’s ineffective assistance of counsel claim rests primarily on matters outside the record, it would require a CPL 440.10 motion (People v Love, 57 NY2d 998 [1982]).

Section 440.10 provides a motion to develop the record for an ineffective assistance claim that depends on matters outside the trial record.

People v. Hendrix · filed 2004-06-10

Since defendant’s ineffective assistance of counsel claim turns on matters that are not reflected in the record, including his communications with his trial counsel and counsel’s trial preparation and strategy, it would 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 provides a motion to develop a record for an ineffective assistance claim based on counsel’s trial preparation outside the trial record.

People v. Gonzalez · filed 2004-06-29

Defendant’s ineffective assistance of counsel claim turns on matters concerning counsel’s trial preparation that are not reflected in the record and would require a further record to be developed by way of a CPL 440.10 motion {see People v Love, 57 NY2d 998 [1982]).

A CPL 440.10 motion can develop facts outside the appellate record about trial counsel’s strategic decisions for an ineffective assistance claim.

People v. Morsby · filed 2004-10-05

Defendant’s ineffective assistance of counsel claim would require a CPL 440.10 motion so as to expand the record as to counsel’s strategic decisions (see, People v Baher, 308 AD2d 365 [2003]; see also, People v Conyers, 114 AD2d 967 [1985], lv denied 67 NY2d 650 [1986]).

A CPL 440.10 motion is required for an ineffective assistance claim that depends on matters outside the trial record.

People v. Reyes · filed 2004-10-14

Since defendant’s ineffective assistance of counsel contention involves matters outside the record relating to the reasons for trial counsel’s failure to object to certain testimony, it would require a CPL 440.10 motion.

Section 440.10 provides the procedural vehicle for a defense counsel conflict of interest claim based on material outside the record.

People v. Pagan · filed 2004-11-19

Defendant’s contention that defense counsel had a conflict of interest is based on material outside the record, and thus the appropriate procedural vehicle to address that contention is a motion pursuant to CPL 440.10 (see People v Englert, 285 AD2d 987 [2001], lv denied 97 NY2d 655 [2001]).

A CPL 440.10 motion may raise a claim that depends on evidence outside the trial record and could not have been decided on direct appeal.

People v. Rosado · filed 2004-12-23

As this issue cannot be decided without knowing the content of the psychiatric records—which were not put in evidence at trial—we disagree with County Court that defendant could have raised this issue on direct appeal and hold that it has been properly raised by the CPL 440.10 motion herein (see People v Magee, 263 AD2d 763, 766 [1999]).

CPL 440.10 provides a motion to raise ineffective-assistance claims that depend on facts outside the trial record.

People v. Banks · filed 2005-01-06

His arguments that counsel failed to properly advise him of his defenses and failed to call witnesses that he requested are not supported by the record and would be more appropriately addressed by a CPL 440.10 motion.

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

People v. Walton · 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 does not procedurally bar an ineffective assistance claim involving matters outside the record.

People v. McPherson · filed 2005-01-31

The Supreme Court erred in concluding that the defendant’s motion to vacate her conviction was procedurally barred, since her claim of ineffective assistance of counsel involves matter dehors the record (see CPL 440.10).

A CPL 440.10 motion is required to expand the record concerning counsel’s reasons for not filing pretrial motions.

People v. Berry · filed 2005-02-10

Defendant’s ineffective assistance claim would require a CPL 440.10 motion in order to expand the record as to counsel’s reasons for not filing pretrial motions (see People v Love, 57 NY2d 998 [1982]).

CPL 440.10 provides the motion procedure for an ineffective-assistance claim that rests primarily on matters outside the trial record.

People v. McCaa · filed 2005-03-03

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

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

People v. Robles · filed 2005-04-07

Defendant’s ineffective assistance of counsel claim would require a CPL 440.10 motion because it involves matters outside the record concerning counsel’s advice to defendant (see People v Ramos, 63 NY2d 640, 643 [1984]).

CPL 440.10 provides a motion procedure for claims based on information outside the appellate record.

People v. Sylar · filed 2005-09-30

To the extent that defendant contends otherwise, his contention is based upon information outside the record and thus must be raised by way of a motion pursuant to CPL 440.10 (see People v Jackson, 4 AD3d 773, 774 [2004], lv denied 2 NY3d 801 [2004]; People v Nicholson, 269 AD2d 868, 869 [2000], lv denied 95 NY2d 907 [2000]).

An ineffective-assistance claim based on matters outside the trial record must be raised by a CPL 440.10 motion.

People v. Ferguson · filed 2005-09-30

The contention of defendant that he was denied his right to effective assistance of counsel is based upon matters outside the trial record and thus must be raised by way of a motion pursuant to CPL 440.10 (see People v Walton, 14 AD3d 419, 420 [2005]).

A CPL 440.10 motion is required to develop facts about counsel’s conduct that are absent from the trial record.

People v. Paredes · filed 2005-10-11

Defendant’s assertion that trial counsel lied to the court about certain photographs he claimed to have taken but lost is not reviewable on the present record, and would require a CPL 440.10 motion (see People v Love, 57 NY2d 998 [1982]) in order to give counsel an opportunity to explain what photographs he was referring to, whether they were the same photographs which formed the basis of defendant’s CPL 330.30 motion, and the circumstances of their production and loss.

CPL 440.10 provides a way to develop facts outside the direct appeal record for an ineffective assistance of counsel claim.

People v. Bello · filed 2005-11-01

Defendant’s ineffective assistance of counsel claim, based on counsel’s alleged failure to investigate the facts and law of the case, is unreviewable on direct appeal since it involves matters outside the record that would require an expansion of the record by way of a CPL 440.10 motion (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Diaz, 303 AD2d 167, 167 [2003], lv denied 100 NY2d 580 [2003]).

Section 440.10 is the proper vehicle for factual claims based on matters outside the record.

People v. Johnson · filed 2005-12-22

Indeed, defendant’s motion was based on allegations of fact dehors the record, and thus “[t]he proper vehicle by which to make such factual claims is a motion pursuant to CPL 440.10”

A CPL 440.10 motion is necessary to explore counsel’s possible strategy when an ineffective assistance claim depends on matters outside the trial record.

People v. Jenkins · filed 2006-01-17

Accordingly, we reject defendant’s argument that counsel’s behavior could not have been prompted by strategic concerns ... and we conclude that a CPL 440.10 motion would be necessary to explore what, if any, strategy was behind counsel’s behavior.

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

People v. Peyton · filed 2006-03-30

However, he concedes that his claim involves factual matters outside the record concerning the conduct of his defense. Therefore, his claim would require a CPL 440.10 motion and is unreviewable on direct appeal (see People v Sutton, 220 AD2d 351 [1995], lv denied 87 NY2d 925 [1996]).

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

People v. Lopez · filed 2006-04-06

Since defendant’s remaining ineffective assistance of counsel claims turn on matters that are not reflected in the record, including counsel’s trial preparation and strategy, they are not reviewable on direct appeal and would 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 provides the motion procedure for pursuing an ineffective-assistance claim based on matters outside the appellate record.

People v. June · filed 2006-06-09

To the extent that the contention of defendant that he was denied effective assistance of counsel survives his guilty plea and his waiver of the right to appeal (see People v Fifield, 24 AD3d 1221, 1222 [2005], lv denied 6 NY3d 775 [2006]), that contention concerns matters outside the record on appeal, and defendant must proceed by way of a motion pursuant to CPL 440.10 (see People v Leno, 21 AD3d 1399, 1400 [2005], lv denied 5 NY3d 883 [2005]; People v Joyner, 19 AD3d 1129 [2005]).

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

People v. Washington · filed 2007-04-20

Further, to the extent that defendant’s contention is based on defense counsel’s alleged failure to investigate certain facts of the case, it “is unreviewable on direct appeal since it involves matters outside the record that would require an expansion of the record by way of a CPL 440.10 motion” (People v Bello, 23 AD3d 152, 153 [2005]).

Section 440.10 provides a motion procedure for claims based on matters outside the record.

People v. Hoeft · filed 2007-07-06

The further contentions of defendant in his pro se supplemental brief that the conduct of the District Attorney’s office was vindictive and that he was denied effective assistance of counsel are based upon matters outside the record and thus are properly raised in a motion pursuant to CPL 440.10 (see Joyner, 19 AD3d at 1130; see generally People v McNeil, 244 AD2d 998 [1997], lv denied 91 NY2d 928 [1998]).

CPL 440.10 is the proper way to raise an ineffective-assistance claim involving matters outside the appellate record.

People v. Wilson · filed 2008-03-14

Defendant’s contention with respect to ineffective assistance of counsel involves matters outside the record on appeal, and thus the proper procedural vehicle for raising that claim is by way of a motion pursuant to CPL 440.10 (see People v Johnson, 24 AD3d 1257 [2005], lv denied 6 NY3d 814 [2006]).

Section 440.10 provides the proper motion for an ineffective-assistance claim concerning matters outside the record on appeal.

People v. Hardy · filed 2008-03-14

Defendant’s motion did not raise a “ground appearing in the record” (CPL 330.30 [1]) and, to the extent that it concerns matters outside the record on appeal, the proper procedural vehicle is a motion pursuant to CPL 440.10 (see People v Sweet, 30 AD3d 1080 [2006], lv denied 7 NY3d 795 [2006]).

Section 440.10 provides the motion procedure for raising a prosecutorial misconduct claim based on matters outside the record on appeal.

People v. Carlisle · filed 2008-04-25

Defendant’s contention concerning alleged prosecutorial misconduct concerns matters outside the record on appeal and thus must be raised by way of a motion pursuant to CPL 440.10 (see People v Hoeft, 42 AD3d 968, 969-970 [2007], lv denied 9 NY3d 962 [2007]; see generally People v Williams, 48 AD3d 1108, 1109 [2008]).

Section 440.10 provides a motion to raise ineffective-assistance claims based on matters outside the appellate record.

People v. Echavarria · filed 2008-07-17

Addressing defendant’s claim that he was deprived of the effective assistance of counsel, many of his assertions are outside the record on appeal and the proper recourse is a motion pursuant to CPL 440.10 (see People v Graham, 298 AD2d 766, 766-767 [2002]).

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

People v. McKnight · filed 2008-10-03

To the extent that defendant contends that he was denied effective assistance of counsel when defense counsel advised him to testify as a result of the court’s failure to give the instruction in question at the outset of the trial, that contention “involves 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” (People v Wilson, 49 AD3d 1224, 1225 [2008]; see People v Hall, 50 AD3d 1467, 1469 [2008]; People v Kester, 45 AD3d 1355, 1356 [2007], lv denied 10 NY3d 767 [2008]).

CPL 440.10 provides a way to raise an ineffective assistance claim involving matters outside the appellate record.

People v. King · filed 2008-11-14

To the extent that defendant’s contention involves matters outside the record on appeal, it is properly raised by ... way of a motion pursuant to CPL 440.10 (see People v McKnight, 55 AD3d 1315 [2008]).

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

People v. Peterson · filed 2008-11-14

Although the contention of defendant that he was denied effective assistance of counsel “survives his guilty plea and his waiver of the right to appeal inasmuch as he contends that his plea was infected by the alleged ineffective assistance” (People v Jennings, 8 AD3d 1067, 1068 [2004], lv denied 3 NY3d 676 [2004]), that contention involves matters outside the record on appeal and thus must be raised by way of a motion pursuant to CPL 440.10 (see id.; see also People v Nichols, 21 AD3d 1273, 1274 [2005], lv denied 6 NY3d 757 [2005]; People v Prince, 5 AD3d 1098, 1098-1999 [2004], lv denied 2 NY3d 804 [2004]).

Section 440.10(1)(h) provides a post-judgment motion to vacate for reviewing an ineffective-assistance claim based on matters outside the direct-appeal record.

People v. Johnson · filed 2009-07-28(1)(h)

However, because the defendant’s claim of ineffective assistance of counsel is based upon matter dehors the record, the defendant’s claim is not properly before this Court on direct appeal (see People v Maldonado, 61 AD3d 1220 [2009]; People v James, 269 AD2d 845, 846 [2000]; People v Juhans, 147 AD2d 658 [1989]). The defendant’s claim may properly be reviewed only in the context of a post-judgment motion to vacate pursuant to CPL article 440 (see People v Maldonado, 61 AD3d at 1220; People v James, 269 AD2d at 846; People v Juhans, 147 AD2d at 658; see also People v Harris, 109 AD2d 351, 360 [1985]; CPL 440.10 [1] [h]).

Section 440.10 permits a defendant to support an ineffective assistance claim with facts outside the appellate record, including a witness affidavit.

People v. Konstantinides · filed 2009-12-17

While the record on appeal is insufficient to establish that Jennifer might have given relevant and honest testimony, nothing prevented defendant from raising an ineffective assistance claim in a Criminal Procedure Law § 440.10 motion. Such a motion could have included an affidavit in which Jennifer explained the substance and significance of her evidence.

CPL 440.10 permits a claim of ineffective assistance of counsel based on facts outside the trial record, because those facts may be considered on a motion under the section.

People v. Miller · filed 2009-12-22

“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” (People v Bagarozy, 182 AD2d 565, 566 [1992]).

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

People v. Volfson · filed 2010-01-21

To the extent that defendant’s assertions are based on matters outside the record, they should be addressed by a motion pursuant to CPL 440.10 (see People v Echavarria, 53 AD3d 859, 863-864 [2008], lv denied 11 NY3d 832 [2008]).

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

People v. Varmette · filed 2010-02-18

To the extent that defendant contends that counsel failed to adequately investigate the underlying charges, interview witnesses or prepare defendant for trial, these claims concern matters outside the record and are more properly the subject of a CPL 440.10 motion (see People v Echavarria, 53 AD3d 859, 863-864 [2008], lv denied 11 NY3d 832 [2008]).

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

People v. Cobb · filed 2010-04-30

To the extent that defendant’s contention is based on defense counsel’s alleged failure to conduct an investigation or to pursue the justification defense, it involves matters outside the record on appeal and thus must be raised by way of a motion pursuant to CPL 440.10 (see People v Griffin, 48 AD3d 1233, 1236 [2008], lv denied 10 NY3d 840 [2008]).

Section 440.10 provides a motion procedure for claims involving matters outside the record on appeal.

People v. Schrock · filed 2010-05-07

In any event, that contention involves matters outside the record on appeal, and it therefore must be raised by way of a motion pursuant to CPL 440.10 (see People v King, 56 AD3d 1193 [2008], lv denied 11 NY3d 926 [2009]; People v Peterson, 56 AD3d 1230 [2008]).

Section 440.10 provides a procedure for raising ineffective-assistance claims based on facts outside the record, supported by affidavit.

People v. Gravino · filed 2010-05-11

Finally, as the Appellate Division pointed out, Gravino's claim of ineffective assistance of counsel brings up matters not apparent from the face of the record, which are therefore properly fleshed out by affidavit in support of a CPL 440.10 motion rather than raised on direct appeal.

Section 440.10(1)(f) provides a motion procedure for determining factual allegations outside the record on direct appeal.

People v. Lasher · filed 2010-06-10(1)(f)

Thus, these factual allegations are outside the record on appeal and could only be determined in a motion pursuant to CPL 440.10 (1) (f) (see e.g. People v Scudds, 62 AD3d 1165, 1166 [2009], lv denied 12 NY3d 929 [2009]; People v Weis, 56 AD3d at 902).

CPL 440.10 is the appropriate motion for a claim that counsel gave erroneous advice outside the record before a guilty plea.

People v. Johnson · filed 2010-10-07

Defendant’s argument amounts to “an assertion that counsel provided erroneous off-the-record advice,” which must be raised in an appropriate CPL 440.10 motion (People v Henderson, 130 AD2d 789, 790 [1987]; see People v Ramos, 63 NY2d 640, 642-643 [1984]; People v Bagley, 298 AD2d 616, 617 [2002], lv denied 99 NY2d 580 [2003]).

Section 440.10 provides a way to raise an ineffective-assistance claim based on counsel’s failure to challenge preindictment delay when the appellate record does not reveal the reason for the delay.

People v. Williamson · filed 2010-10-28

To the extent that defendant’s argument is premised on counsel’s failure to make a motion to dismiss the indictment based upon preindictment delay, we find that it is more properly the subject of a CPL 440.10 motion.

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

People v. Archie · filed 2010-11-12

Defendant’s remaining contentions with respect to allegedly ineffective assistance of counsel involve matters outside the record on appeal, and thus the proper procedural vehicle for raising those contentions is a motion pursuant to CPL 440.10 (see People v Dunbar, 74 AD3d 1227, 1229 [2010]; People v Slater, 61 AD3d 1328, 1329-1330 [2009], lv denied 13 NY3d 749 [2009]).

CPL 440.10 is the proper avenue for claims about counsel’s advice that depend on facts outside the record on appeal.

People v. Willi · filed 2011-01-13

Defendant’s claims regarding what counsel advised him are entirely outside the record on appeal, and are more properly raised in a CPL 440.10 motion to vacate the judgment (see People v Moyer, 75 AD3d 1004, 1006 [2010]; People v Echavarria, 53 AD3d 859, 863-864 [2008], lv denied 11 NY3d 832 [2008]).

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

RUSSELL, FRANK, PEOPLE v · filed 2011-04-01

Defendant’s further contention that defense counsel was ineffective in failing to conduct a proper investigation of the case and to obtain certain records concerning defendant’s medical treatment is based on matters outside the record on appeal and thus must be raised by way of a motion pursuant to CPL 440.10 (see People v Cobb, 72 AD3d 1565, 1567, lv denied 15 NY3d 803; People v Washington, 39 AD3d 1228, 1230, lv denied 9 NY3d 870).

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

ADGER, LAMAR O., PEOPLE v · filed 2011-04-29

To the extent that defendant’s contention is not forfeited by the plea (see People v Santos, 37 AD3d 1141, lv denied 8 NY3d 950), it involves matters outside the record on appeal and thus must be raised by way of a motion pursuant to CPL 440.10 (see People v Cobb, 72 AD3d 1565, 1567, lv denied 15 NY3d 803; People v Slater, 61 AD3d 1328, 1329-1330, lv denied 13 NY3d 749; People v Lawrence, 27 AD3d 1120, lv denied 6 NY3d 850).

Section 440.10 is the proper procedural vehicle for a claim based on matters outside the record.

People v. Wimberly · filed 2011-07-07

Because this claim is based on matters outside of the record, a motion pursuant to CPL 440.10 is the appropriate procedural vehicle to raise this challenge (see People v Mobley, 59 AD3d 741, 742 [2009], Iv denied 12 NY3d 856 [2009]; People v Obert, 1 AD3d 631, 632 [2003], Iv denied 2 NY3d 764 [2004]; People v Reynolds, 309 AD2d 976, 976 [2003]; see generally People v Pendelton, 81 AD3d 1037, 1038-1039 [2011]).

Section 440.10 provides a motion for claims about counsel’s advice that depend on matters outside the record.

People v. Flynn · filed 2012-02-23

To the extent that defendant claims that Favro did not provide an adequate explanation of the affirmative defenses potentially available to him, such claim concerns matters outside the record and is more properly the subject of a CPL 440.10 motion (see People v Underdue, 89 AD3d 1132, 1134 [2011]; People v Moyer, 75 AD3d 1004, 1006 [2010]).

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

People v. James · 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 record.

People v. Palmer · filed 2012-05-15

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 in its entirety when resolving it requires matters outside the record.

People v. Peterson · filed 2012-05-15

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 for reviewing an ineffective assistance claim that requires evidence outside the record.

People v. Porter · filed 2012-05-23

The defendant’s claim of ineffective assistance cannot be resolved without reference to matter outside the record. Accordingly, a CPL 440.10 application 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 matter outside the record.

People v. Ceparano · 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]).

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

People v. Hernandez · 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]).

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. McClurkin · 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]).

Section 440.10 permits a defendant to raise ineffective assistance or plea voluntariness claims based on matters outside the record by affidavit in a motion to vacate.

People v. Maracle · filed 2012-06-27

To the extent that defendant seeks to advance such a claim or to challenge the voluntariness of her plea on matters outside the record, she may do so “by affidavit in support of a CPL 440.10 motion” (People v Gravino, 14 NY3d 546, 558 [2010]).

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

People v. Dauch · 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]).

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

People v. Denham · filed 2012-07-11

Since the defendant’s contention that he was deprived of the effective 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; People v Rohlehr, 87 AD3d 603, 604 [2011]).