N.Y. Crim. Proc. Law § 440.10

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

People v. Tallegrand · filed 2019-11-13

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

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

People v. Soto · filed 2019-11-13

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

Section 440.10 provides a way to raise ineffective assistance claims based on matters outside the trial record; without such a motion, their merits cannot be addressed on direct appeal.

People v. Winston · filed 2019-11-21

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

A defendant must bring a CPL 440.10 motion before an appellate court can address an ineffective assistance claim that depends on facts outside the appellate record.

People v. Hunter · filed 2019-12-05

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

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

People v. Peterson · filed 2019-12-11

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Barber , 133 AD3d 868, 872; People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

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

People v. Davis · filed 2019-12-11

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

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

People v. Anglin · filed 2019-12-11

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

CPL 440.10 provides a proceeding for a jury-trial waiver claim that must be proved with facts outside the trial record.

People v. Hosannah · filed 2019-12-24

The defendant contends that his waiver of the right to a jury trial was invalid. The defendant's claim "is to be proved, if at all, by facts outside the trial record in a proceeding maintainable under CPL 440.10" ( People v Johnson , 51 NY2d 986, 988).

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

People v. Thompson · filed 2020-01-08

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

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

People v. Lagoa · filed 2020-01-08

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

A claim based on counsel’s advice outside the record is properly raised in a section 440.10 motion.

People v. Betances · filed 2020-01-09(2)(c)

Initially, defendant's allegations were properly raised in this CPL 440.10 motion because they rely on matters outside the record concerning what counsel advised him ( see People v Reynoso , 88 AD3d 1162, 1162-1163 [2011]; compare CPL 440.10 [2] [c]).

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

People v. Pagan · filed 2019-11-20

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

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

People v. Williams · filed 2019-12-24

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

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

People v. Perrone-Maple (Marcello) · filed 2020-01-30

Since 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 Atkins , 157 AD3d 899 , 899-900 [2018]; People v Direnzo , 134 AD3d 851 , 851 [2015]; People v Freeman , 93 AD3d 805 , 806 [2012]).

A CPL 440.10 motion is unnecessary when the existing record clearly establishes that counsel made a mistake rather than a strategic decision.

People v. Camacho · filed 2019-12-12

Since the existing record clearly establishes that this was a mistake, rather than a strategic decision, no CPL 440.10 motion is necessary.

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

People v. Blue · filed 2020-02-05

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

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

People v. Jalloh · filed 2020-03-05

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

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

People v. McNeil · filed 2020-03-11

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

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

People v. Riley · filed 2020-03-13

Defendant's contentions in his pro se supplemental brief are based on matters outside the record and must therefore be raised by way of a motion pursuant to CPL 440.10 ( see People v Jordan , 153 AD3d 1130, 1131 [4th Dept 2017], lv denied 30 NY3d 981 [2017]).

Section 440.10(2)(b) does not bar consideration of a claim based on matters outside the direct appeal record.

People v. Fox · filed 2020-03-13(2)(b)

Contrary to the court's determination, that contention involves matters outside the record on appeal and therefore could not have been addressed on direct appeal ( see Fox , 124 AD3d at 1253; see also People v Burdine , 147 AD3d 1471, 1473 [4th Dept 2017], lv denied 29 NY3d 1076 [2017]; cf. CPL 440.10 [2] [b]).

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

People v. Lewis · filed 2020-04-29

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 [*2]reviewing the claim in its entirety and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

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

People v. Grant · filed 2020-05-06

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

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

The People v. Maffei · filed 2020-05-07

Therefore, the appropriate procedure for the litigation of defendant’s challenge to his counsel’s performance is a CPL 440.10 motion – the very mechanism designed by the Legislature to enable review of factual issues dehors the record.

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

People v. Walters · filed 2020-05-13

The appropriate vehicle for asserting a claim of ineffective assistance of counsel grounded in allegations referring to facts outside the record is a motion pursuant to CPL 440.10, where matters dehors the record may be considered ( see People v Avilacruz , 172 AD3d 1398, 1399; People v Rohlehr , 87 AD3d 603, 604).

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

People v. Reeves · filed 2020-02-19

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

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

People v. Hidalgo · filed 2020-02-26

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

Section 440.10(2)(c) does not bar a unified ineffective assistance claim involving matters both on and off the trial record merely because some allegations could have been raised on direct appeal.

Anderson v. Lee · filed 2020-04-07(2)(c)

Consequently, petitioner’s unified ineffective assistance of counsel claim is not procedurally barred, and I will therefore need to review his claim on its merits.

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

People v. Hussain · filed 2020-06-03

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

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

People v. Fuqua · filed 2020-06-12

To the extent that defendant's contention is based upon matters outside the record on appeal, his contention must be raised by way of a motion pursuant to CPL 440.10 ( see People v Wilcher , 158 AD3d 1267, 1268-1269 [4th Dept 2018], lv denied 31 NY3d 1089 [2018]).

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

People v. Wingate · filed 2020-06-17

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

Section 440.10 provides the appropriate forum for claims relying on evidence outside the trial record.

People v. Goodwine · filed 2020-06-17

Rather, a CPL 440.10 proceeding is the appropriate forum for adjudication of claims relying upon evidence dehors the record.

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

People v. Booker · filed 2020-06-17

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

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

People v. Wilkinson · filed 2020-07-08

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

Section 440.10 provides a motion procedure for ineffective assistance claims that depend on matters outside the trial record and cannot be reviewed on direct appeal.

People v. Drame · filed 2020-07-09

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 procedure for raising an ineffective-assistance claim that depends on discussions outside the record on appeal.

People v. Spencer · filed 2020-07-17

That contention involves "discussions between defendant and his attorney outside the record on appeal, and it must therefore be raised by way of a motion pursuant to CPL 440.10" ( People v Manning , 151 AD3d 1936, 1938 [4th Dept 2017], lv denied 30 NY3d 951 [2017]; see People v Dale , 142 AD3d 1287, 1290 [4th Dept 2016], lv denied 28 NY3d 1144 [2017]; People v Stachnik , 101 AD3d 1590, 1591 [4th Dept 2012], lv denied 20 NY3d 1104 [2013]).

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

People v. Fuentes · filed 2020-07-22

Since the defendant's claim of ineffective assistance cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell, 89 AD3d at 1009).

Section 440.10(2)(c) does not bar a unified ineffective assistance claim that depends on facts both in and outside the trial record.

Hernandez v. Artus · filed 2020-05-28(2)(c)

Here, petitioner’s CPL § 440.10 motion raised a unified ineffective assistance of counsel claim that depended on some facts appearing on the trial record, but also turned on facts appearing outside the record. Accordingly, petitioner’s claim is not procedurally barred, and the court must review it on the merits.

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

People v. McMullin · filed 2020-08-26

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

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

People v. Walder · filed 2020-09-02

The appropriate vehicle for asserting a claim grounded in allegations referring to facts outside the record is a motion pursuant to CPL 440.10, where matters dehors the record may be considered ( see People v Avilacruz , 172 AD3d 1398, 1399; People v Rohlehr , 87 AD3d 603, 604).

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

People v. Janvier · filed 2020-09-02

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

Section 440.10 provides a motion to vacate a judgment for claims based on facts outside the direct appeal record, including claims about grand jury proceedings and withheld Brady material.

People v. Petion · filed 2020-09-16

The contentions raised by the defendant in his pro se supplemental brief regarding the grand jury proceeding are not subject to review on direct appeal because they involve allegations that are dehors the record, which should be raised in a motion pursuant to CPL 440.10 to vacate the judgment ( see People v Flores , 151 AD3d 740, 741; People v English , 119 AD3d 706; People v Redmond , 41 AD3d 514, 515-516; People v Palmer , 29 AD3d 606; People v Sain , 261 AD2d 488). Likewise, the defendant's contention that the People withheld certain alleged Brady material ( see Brady v Maryland , 373 US 83) is not properly raised on direct appeal, and should also be raised in a motion pursuant to CPL 440.10 to vacate the judgment, because the facts supporting the defendant's claim are dehors the record ( see People v Ellis , 166 AD3d 993, 994, affd 34 NY3d 1092; People v Geritano , 158 AD3d 724, 725; People v Wilson , 283 AD2d 339, 340).

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

People v. Williams · filed 2020-09-29

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

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

People v. Carpenter · filed 2020-10-02

To the extent that defendant's contention is dependent on matters outside the record on direct appeal, "the appropriate procedure for the litigation of defendant's challenge to his counsel's performance is a CPL 440.10 motion" ( Maffei , 35 NY3d at 266).

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

People v. Hinton · filed 2020-10-07

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

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

People v. Gudanowski · filed 2020-10-28

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

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

People v. Norberto · filed 2020-11-12

The defendant's contention that he was deprived of the effective assistance of counsel based upon his attorney's failure to advise him of the immigration consequences of his plea cannot be resolved without reference to matter outside the record, and thus, a CPL 440.10 proceeding is the appropriate forum for reviewing the defendant's ineffective assistance of counsel claim in its entirety ( see People v Gustavo-Cano , 149 AD3d 1100, 1101).

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

People v. Graham · filed 2020-11-12

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

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

People v. Torres · filed 2020-10-07

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

Mixed ineffective assistance claims involving matters both on and outside the record are better addressed together in a CPL 440.10 motion.

People v. Burks · filed 2020-10-29

To the extent that defendant's contentions concern matters appearing both on the record and outside of the record, they present a mixed claim of ineffective assistance, which are better addressed together, in their entirety, in a motion pursuant to CPL 440.10 ( see People v Taylor , 156 AD3d 86, 89-92 [2017], lv denied 30 NY3d 1120 [2018]).

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

People v. Meyers · filed 2020-11-20

Defendant's contention with respect to defense counsel's failure to file an alibi notice involves matters outside the record on direct appeal and, as a result, must be raised in a CPL 440.10 motion ( see e.g. People v Williams [appeal No. 2], 175 AD3d 980, 981 [4th Dept 2019], lv denied 34 NY3d 1020 [2019]; People v Almonte , 171 AD3d 470, 471 [1st Dept 2019], lv denied 33 NY3d 1102 [2019]).

CPL 440.10 provides a motion to seek review of an ineffective assistance claim involving plea negotiations and sentencing when the claim depends on matters outside the appellate record.

People v. Ruiz-Solano · filed 2020-11-25

To the extent that the defendant's contention relates to alleged ineffective assistance that directly involves the plea negotiation process and sentence, it is based on matters outside the record on appeal ( see People v White , 185 AD3d 842; People v Shabazz , 174 AD3d 824, 825; People v Stevens , 162 AD3d 1077, 1078). The appropriate vehicle for review of such a contention is a motion pursuant to CPL 440.10 ( see People v Shabazz , 174 AD3d at 825; People v Stevens , 162 AD3d at 1078).

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

People v. McCoy · filed 2020-11-25

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

Ineffective assistance claims involving matters outside the direct appeal record cannot be addressed on appeal when no CPL 440.10 motion has been made.

People v. Allen · filed 2020-12-03

Most of defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record ( see People v Rivera , 71 NY2d 705, 709 [1988]; People v Love , 57 NY2d 998 [1982]). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims, except the claim that defense counsel deferred to defendant whether to seek a jury charge on a lesser included offense, may not be addressed on appeal.

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

People v. Pelzer · filed 2020-12-16

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

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

People v. Walker · filed 2020-12-30

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

Section 440.10 provides a forum for an ineffective assistance of counsel claim based on matters outside the direct appeal record.

People v. Coverdale · filed 2020-12-30

Since the defendant's claim of ineffective assistance is based on matter appearing outside the record, it is unreviewable on this direct appeal; a CPL 440.10 proceeding is the appropriate forum for reviewing the defendant's ineffective assistance of counsel claim ( see People v Norberto , ___ AD3d ___, 2020 NY Slip Op 06554 [2d Dept]; People v Walder , 186 AD3d 1272).

A defendant must make a CPL 440.10 motion to obtain review of ineffective-assistance claims that depend on matters outside the direct-appeal record.

People v. Kareem · filed 2021-01-19

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

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

People v. Sykes · filed 2021-02-02

Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not fully explained by the record ( see People v Maffei , 35 NY3d 264, 269-70 [2020]). Accordingly, because defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal.

Section 440.10 provides the procedure for raising an ineffective assistance claim based on deportation advice when the alleged failure does not appear on the face of the record.

People v. Wilson (Chevelair) · filed 2021-02-05

Where a defendant's complaint about counsel is predicated on a failure to advise of deportation consequences, which failure does not appear on the face of the record, the defendant must raise the claim via a CPL 440.10 motion ( see People v Peque , 22 NY3d 168, 202 [2013]; People v Haffiz , 19 NY3d 883, 885 [2012]; People v McLean , 15 NY3d 117, 121 [2010]; People v Love , 57 NY2d 998, 1000 [1982]).

Section 440.10 provides the appropriate forum for reviewing an ineffective assistance claim in its entirety when the claim cannot be resolved without facts outside the record.

People v. Spencer · filed 2021-02-05

Where, as here, "the 'claim of ineffective assistance of counsel cannot be resolved without reference to matter outside of the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety' " ( People v Wilson [appeal No. 2], 162 AD3d 1591, 1592 [4th Dept 2018] [emphasis omitted]; see generally People v Maffei , 35 NY3d 264, 269-270 [2020]).

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

People v. Barksdale · filed 2021-02-05

To the extent that these claims are dependent on matters outside the record on direct appeal, "the appropriate procedure for the litigation of defendant's challenge to his counsel's performance is a CPL 440.10 motion" ( Maffei , 35 NY3d at 266; see People v Smith , 145 AD3d 1628, 1630 [4th Dept 2016], lv denied 31 NY3d 1017 [2018]).

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

People v. Vega · filed 2021-02-11

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

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

People v. Fraser · filed 2021-03-03

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

Section 440.10 requires a motion to review ineffective assistance claims based on evidence outside the trial record.

People v. Conley · filed 2021-03-19

To the extent that defendant's remaining claims of ineffective assistance of counsel are based on evidence outside the record, a CPL 440.10 motion is required to review those claims ( see People v Wilson [appeal No. 2], 162 AD3d 1591, 1592 [4th Dept 2018]; People v Gomez , 52 AD3d 395, 395 [1st Dept 2008], lv denied 11 NY3d 736 [2008]).

Section 440.10 provides a way to raise claims based on evidence outside the trial record through an expanded record.

Camarano v. Griffin · filed 2021-03-25

Because Camarano’s actual innocence claim relies on evidence that was not part of the trial record, it should have been raisedas part of an expanded record in a § 440.10 motion.

Section 440.10 is the procedure for raising an ineffective-assistance claim based on counsel's advice that does not appear in the record.

People v. Norbekov · filed 2021-03-26

Defendant's contention therefore involves allegations of deficient performance of counsel that do not appear on the record, and thus it must be raised by way of a motion pursuant to CPL 440.10 ( see People v Rajab , 133 AD3d 1241, 1242 [4th Dept 2015], lv denied 27 NY3d 1154 [2016]; see generally People v Gomez , 186 AD3d 422, 423 [1st Dept 2020]).

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

People v. Barber · filed 2021-03-26

Both of those contentions, however, rely on matters outside the record on appeal and must therefore be raised by motion pursuant to CPL 440.10 ( see People v Spencer , 185 AD3d 1440, 1442 [4th Dept 2020]; People v Manning , 151 AD3d 1936, 1938 [4th Dept 2017], lv denied 30 NY3d 951 [2017]; People v Mangiarella , 128 AD3d 1418, 1418 [4th Dept 2015]).

A CPL 440.10 motion is the appropriate vehicle for an ineffective-assistance claim based on facts outside the record on appeal.

People v. Rose · filed 2021-04-14

The appropriate vehicle for asserting a claim of ineffective assistance of counsel grounded in allegations referring to facts outside the record is a motion pursuant to CPL 440.10 ( see People v Walters , 183 AD3d at 766; People v Shabazz , 174 AD3d at 825).

Section 440.10 provides a way to raise ineffective-assistance claims that depend on matters outside the trial record; without such a motion, their merits cannot be addressed on direct appeal.

People v. Aviles (Julio) · filed 2021-04-16

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

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

People v. Meyn · filed 2021-04-28

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

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

People v. Martinez · filed 2021-05-05

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

CPL 440.10 provides the forum for an ineffective assistance of counsel claim that requires consideration of matters outside the direct appeal record.

People v. Lopez-Alvarado · filed 2021-05-19

Since the record does not conclusively demonstrate that the defendant's attorney failed to inform him of the immigration consequences of his plea, the defendant's claim cannot be resolved without reference to matter outside the record. Accordingly, a CPL 440.10 proceeding is the appropriate forum for reviewing the defendant's ineffective assistance of counsel claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Haffiz , 19 NY3d 883, 885; People v [*2]Rodriguez , 115 AD3d 884; People v Drammeh , 100 AD3d 650, 651; People v Salmon , 97 AD3d 608, 609).

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

People v. Rottela · filed 2021-05-26

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

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

People v. Dillon · filed 2021-06-09

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

Section 440.10 provides the appropriate forum for reviewing a mixed ineffective-assistance claim that requires facts outside the record, to the extent the claim survives a guilty plea.

People v. Johnson · filed 2021-06-11

Where, as here, "the 'claim of ineffective assistance of counsel cannot be resolved without reference to matter outside of the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the [mixed] claim' " to the extent it survives the guilty plea ( People v Wilson [appeal No. 2], 162 AD3d 1591, 1592 [4th Dept 2018] [emphasis omitted]; see generally People v Maffei , 35 NY3d 264, 269-270 [2020]).

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

People v. Ewers · filed 2021-06-16

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

Section 440.10 provides the motion needed to raise ineffective assistance claims based on matters outside the direct appeal record.

People v. Johnson · filed 2021-06-17

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

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

People v. Romanowski · filed 2021-07-09

Defendant's argument, to the extent it survives his guilty plea ( see People v Barnes , 32 AD3d 1250, 1251 [4th Dept 2006]), implicates matters outside the record and must therefore be raised, if at all, pursuant to CPL 440.10 (see People v Williams, 41 AD3d 1252, 1254 [4th Dept 2007]; People v Harry, 130 AD2d 591, 592 [2d Dept 1987]).

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

People v. Green · filed 2021-07-16

To the extent that defendant's contention involves matters outside the record on appeal, it must be raised by way of a motion pursuant to CPL 440.10 ( see People v Carey , 162 AD3d 1476, 1478 [4th Dept 2018], lv denied 32 NY3d 936 [2018]).

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

People v. Rojas · filed 2021-07-28

The defendant's claim that he was deprived of the effective assistance of counsel cannot be resolved without reference to matter outside the record. Accordingly, a CPL 440.10 proceeding is the appropriate forum for reviewing the defendant's ineffective assistance of counsel claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Lopez-Mendoza , 33 NY3d 565, 573; People v Lopez-Alvarado , 194 AD3d 961, 962; People v Coverdale , 189 AD3d 1610, 1611; People v Norberto , 188 AD3d 923, 924).

CPL 440.10 provides a way to explore a mixed ineffective-assistance claim that depends partly on matters outside the trial record.

People v. Tucker (Christopher) · filed 2021-07-29

it is a "mixed claim" which depends in part on matters not appearing on the record and is properly explored in a motion pursuant to CPL 440.10 ( see People v Evans , 16 [*3]NY3d 571, 575 n 2 [2011]; People v Salgado , 111 AD3d 859, 860 [2013]; People v Resto , 58 Misc 3d 150[A], 2018 NY Slip Op 50086[U], *3 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).

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

People v. Jamison · filed 2021-08-11

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 [*2]proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

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

People v. Crudup · filed 2021-08-18

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

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

People v. Parker · filed 2021-08-25

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

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

People v. Ross · filed 2021-08-26

As defendant correctly contends, his claim of ineffective assistance of counsel was properly raised on his CPL 440.10 motion inasmuch as it is based on matters outside the trial record ( see People v Wilson [appeal No. 2], 162 AD3d 1591, 1592 [4th Dept 2018]; see e.g. People v Williams [appeal No. 2], 175 AD3d 980, 981-982 [4th Dept 2019], lv denied 34 NY3d 1020 [2019]; People v Dixon , 147 AD3d 1518, 1519 [4th Dept 2017], lv denied 29 NY3d 1078 [2017]).

Section 440.10 (1) (f) provides a motion to raise claims of improper and prejudicial conduct during unrecorded bench conferences that depend on matters outside the appellate record.

People v. Jenkins · filed 2021-08-26(1)(f)

Any contention involving matters outside the record must be raised in a proceeding pursuant to CPL article 440 and specifically, to the extent that defendant contends that improper and prejudicial conduct occurred during these unrecorded conferences, he is relegated to a motion pursuant to CPL 440.10 (1) (f) ( see generally People v Larrabee , 201 AD2d 924, 924 [4th Dept 1994], lv denied 83 NY2d 855 [1994]).

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

People v. Burke · filed 2021-08-26

Defendant's contention with respect to defense counsel's failure to secure the testimony of an alibi witness involves matters outside the record and must be raised in a CPL 440.10 motion ( see e.g. People v Barksdale , 191 AD3d 1370, 1371 [4th Dept 2021], lv denied 36 NY3d 1118 [2021]; People v Meyers , 188 AD3d 1732, 1734 [4th Dept 2020]; People v Scott , 181 AD3d 1220, 1220 [4th Dept 2020]).

Section 440.10 provides a way to raise a claim that depends on evidence outside the record on appeal.

People v. Britt · filed 2021-10-01

To the extent that such evidence exists outside the record on appeal, defendant's contention should be addressed in a CPL 440.10 motion ( see generally People v Norman , 128 AD3d 1418, 1419 [4th Dept 2015], lv denied 27 NY3d 1003 [2016]; People v Johnson , 88 AD3d 1293, 1294 [4th Dept 2011]).

Section 440.10 provides a motion for raising ineffective-assistance claims that require facts outside the direct-appeal record.

People v. Rojan · filed 2021-10-05

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

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

People v. McPartland · filed 2021-10-13

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

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

People v. Kiarie · filed 2021-10-13

The defendant's claim that he was deprived of the effective assistance of counsel cannot be resolved without reference to matter outside the record. Accordingly, a CPL 440.10 proceeding is the appropriate forum for reviewing the defendant's ineffective assistance of counsel claim, and we decline to review the claim on this direct appeal ( see People v Lopez-Mendoza , 33 NY3d 565, 573; People v Lopez-Alvarado , 194 AD3d 961, 962).

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

People v. Carzoglio · filed 2021-10-13

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review it on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1009).

Section 440.10 provides a motion to review an ineffective-assistance claim based primarily on matters outside the trial record.

People v. Santos · filed 2021-11-03

The defendant's claim of ineffective assistance of counsel cannot be reviewed on direct appeal because it is based primarily on matter outside the record ( see People v Walters , 183 AD3d 765, 766; People v Shabazz , 174 AD3d 824, 825). The appropriate vehicle for review of such a claim is a motion pursuant to CPL 440.10 ( see People v Walters , 183 AD3d at 766).

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

People v. Olmos · filed 2021-11-03

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

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

People v. Shutsha · filed 2021-11-23

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

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

People v. Cromer · filed 2021-11-23

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

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

People v. Stewart · filed 2021-12-01

The appropriate vehicle for asserting a claim of ineffective assistance of counsel grounded in allegations referring to facts outside the record is a motion pursuant to CPL 440.10, where matter dehors the record may be considered ( see People v Walters , 183 AD3d at 766; People v Rohlehr , 87 AD3d at 604).

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

People v. Lopez · filed 2021-12-01

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

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

People v. Williams · filed 2021-12-15

Since the defendant's claim of ineffective assistance of [*2]counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Jones , 105 AD3d 1059, 1060-1061; People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109; cf. People v Robinson , 166 AD3d 661, 662; People v Daniels , 164 AD3d 599, 600).

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

People v. Driver (Randall) · filed 2021-12-16

Since defendant's claim of ineffective assistance of counsel cannot be resolved without [*2]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 Atkins , 157 AD3d 899, 899-900 [2018]; People v Direnzo , 134 AD3d 851, 851 [2015]; People v Freeman , 93 AD3d 805, 806 [2012]).

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

People v. Chen · filed 2021-12-29

Since this 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, and we decline to review the claim on this direct appeal ( see People v Martinez-Galdamez , 193 AD3d 764, 765; People v Pelzer , 189 AD3d 1268, 1268-1269).

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

People v. Ofield · filed 2022-01-12

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Momoh , 192 AD3d 915; People v Walker , 189 AD3d 1619, 1620).

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

People v. Felix · filed 2022-01-13

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

Section 440.10 provides a posttrial route for a right to counsel claim when the record on direct appeal does not irrefutably establish the violation.

People v. Townsend · filed 2022-02-03

Absent a record on appeal that makes it "irrefutably" clear "that a right to counsel violation has occurred" the claimed violation may only be reviewed on a posttrial CPL 440.10 motion and not on direct appeal ( People v McLean , 15 NY3d 117, 121 [2010]). The record before the Court is insufficient to show that a right to counsel violation has irrefutably occurred.

A defendant should use a CPL 440.10 motion to challenge the denial of DNA expert funding when the appellate record lacks the application.

People v. Johnson · filed 2022-02-04

As a preliminary matter, the present record does not include an ex parte application for $500 for a DNA expert and defendant, as the appellant, must bear the consequences of an insufficient record ( see People v Larrabee , 201 AD2d 924, 924 [4th Dept 1994], lv denied 83 NY2d 855 [1994]; see also People v Dye , 78 AD3d 1607, 1608 [4th Dept 2010], lv denied 16 NY3d 743 [2011]). We thus conclude that defendant's challenge to the denial of the application for funds for a DNA expert should be raised in a CPL 440.10 motion ( see Dye , 78 AD3d at 1608).

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

People v. Baggett · filed 2022-02-09

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

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

People v. Nunez · filed 2022-02-10

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

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

People v. Feliz · filed 2022-02-24

Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record. Accordingly, because defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal.

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

People v. Griffin · filed 2022-04-22

To the extent that defendant contends that he was denied effective assistance of counsel by defense counsel's failure to adequately communicate with him or to advise him that he faced consecutive terms of imprisonment, his contention involves matters " 'between defendant and his attorney outside the record on appeal, and it must therefore be raised by way of a motion pursuant to CPL 440.10' " ( People v Brinson , 192 AD3d 1559, 1560 [4th Dept 2021]; see People v Barnes , 56 AD3d 1171, 1171-1172 [4th Dept 2008]).

CPL 440.10 provides a motion procedure for claims based on matters outside the record on direct appeal.

People v. Congdon · filed 2022-04-29

To the extent defendant contends that he was promised enrollment in a shock incarceration program based on off-the-record statements, we note that his contention involves matters outside the record on appeal and must be raised via a motion pursuant to CPL 440.10 ( see People v Beardsley , 173 AD3d 1722, 1724 [4th Dept 2019], lv denied 34 NY3d 928 [2019]; People v Hodge , 226 AD2d 1124, 1124 [4th Dept 1996], lv denied 88 NY2d 986 [1996]).

CPL 440.10 provides a procedure for raising ineffective assistance claims based on facts outside the direct appeal record.

People v. Small · filed 2022-03-02

"'The appropriate vehicle . . . to allege ineffective assistance of counsel grounded in allegations referring [*2]to facts outside of the . . . record is pursuant to CPL 440.10, where matters dehors the record may be considered'" ( People v Rohlehr , 87 AD3d at 604, quoting People v Miller , 68 AD3d at 1135; see People v Stevens , 162 AD3d 1077).

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

People v. Garcia · filed 2022-03-02

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

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

People v. Luna-Velasquez (Samuel) · filed 2022-04-07

To the extent that the complaint about counsel does not appear on the record, defendant must raise the claim via a CPL 440.10 motion ( see Peque , 22 NY3d at 202; People v Haffiz , 19 NY3d 883, 885 [2012]; People v McLean , 15 NY3d 117, 121 [2010]; People v Love , 57 NY2d 998, 1000 [1982]).

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

People v. Stallone · filed 2022-04-13

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

Section 440.10 provides a forum for reviewing a mixed ineffective-assistance claim in its entirety when the claim requires matters outside the record.

People v. Corines · filed 2022-04-13

Since the defendant's claim of ineffective assistance, to the extent that it has not been forfeited by his plea of guilty, cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Ross , 113 AD3d at 878; People v Ortega , 113 AD3d at 798).

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

People v. Vazquez · filed 2022-04-20

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

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

People v. Thompson · filed 2022-04-20

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

Section 440.10 provides the appropriate forum for a mixed ineffective-assistance claim that requires evidence outside the record, to the extent the claim survives a guilty plea.

People v. Barzee · filed 2022-04-22

Where, as here, "the 'claim of ineffective assistance of counsel cannot be resolved without reference to matter outside of the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the [mixed] claim' " to the extent it survives the guilty plea ( People v Wilson [appeal No. 2], 162 AD3d 1591, 1592 [4th Dept 2018]; see Johnson , 195 AD3d at 1422; see generally People v Maffei , 35 NY3d 264, 269-270 [2020]).

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

People v. Yancey · filed 2022-04-27

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

Section 440.10 provides a motion to resolve credibility issues about counsel’s plea advice that cannot be decided on direct appeal.

People v. Harris · filed 2022-03-11

In particular, the unsworn assertions by defendant and defense counsel on that issue raise credibility issues requiring a CPL 440.10 motion ( see generally id. at 572-573).

CPL 440.10 is the procedure for raising a right-to-counsel claim when the record does not clearly establish the alleged violation.

People v. Goodwin · filed 2022-04-29

Because "the record does not make clear, irrefutably, that a right to counsel violation has occurred," defendant's contention must be raised by way of a motion pursuant to CPL 440.10 ( People v McLean , 15 NY3d 117, 121 [2010]; see People v Townsend , 202 AD3d 447, 448 [1st Dept 2022], lv denied — NY3d — [2022]; People v Bakerx , 114 AD3d 1244, 1247 [4th Dept 2014], lv denied 22 NY3d 1196 [2014]).

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

People v. Eberhart (Edward) · filed 2022-05-18

Defendant's contention that assigned counsel provided conflicted, ineffective representation because, at a single court appearance, the prosecutor mentioned an unspecified conflict of interest is unpreserved and not reviewable on direct appeal because this claim involves factual matters outside the record concerning the conduct of the defense that should have been raised in a CPL 440.10 motion ( see People v Fermin , 176 AD3d 539 [2019]; People v Peyton , 27 AD3d 402 [2006], lv denied 7 NY3d 793 [2006]).

Section 440.10 permits a defendant to raise a Brady claim based on information outside the plea record that could not have been raised on direct appeal.

People v. Miles · filed 2022-05-19

Turning to defendant's CPL article 440 motion, we initially find that defendant's contention that the People committed a Brady violation that impacted the voluntariness of his plea was properly raised on this motion "because [it] rel[ies] on information outside the record of the plea proceedings and therefore could not have been raised on direct appeal" ( People v Rouse , 126 AD3d 1227, 1228 [2015] [internal quotation marks and citation omitted]).

CPL 440.10 provides a way to raise ineffective assistance claims that depend on matters outside the trial record; without such a motion, those claims cannot be decided on direct appeal.

People v. Covlin · filed 2022-05-24

Defendant's ineffective assistance of counsel claims based on his trial counsel's failure to raise the above-mentioned unpreserved issues are unreviewable on direct appeal because they involve matters outside the record concerning possible strategic explanations for not objecting ( see e.g. People v Rios, 139 AD3d 620 [1st Dept 2016], lv denied 28 NY3d 973 [2016]). Accordingly, because defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal.

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

People v. Tanveer · filed 2022-05-25

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

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

People v. Savransky · filed 2022-06-08

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

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

People v. Watkins · filed 2022-06-09

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

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

People v. Lopez · filed 2022-06-23

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

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

People v. Washington · filed 2022-06-28

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

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

People v. Avery · filed 2022-06-29

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Addison , 107 AD3d 730, 732; People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

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

People v. Sanders · filed 2022-06-30

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

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

People v. Piasta · filed 2022-07-01

Thus, the record here does not establish defendant's claim of ineffective assistance and, to the extent that defendant's contention depends on matters outside the record on direct appeal, "the appropriate procedure for the litigation of defendant's challenge to [defense] counsel's performance is a CPL 440.10 motion" ( Maffei , 35 NY3d at 266; see Barksdale , 191 AD3d at 1371; Carpenter , 187 AD3d at 1557).

Section 440.10 allows mixed record and nonrecord ineffective-assistance claims to be reviewed in full on appeal from denial of a motion to vacate.

People v. Goodwalt · filed 2022-05-05

Given that defendant's mixed claims of ineffective assistance of counsel are premised on both record-based and nonrecord-based allegations, they are properly reviewed in their entirety on defendant's appeal from the denial of his CPL 440.10 motion ( see People v White-Span , 182 AD3d 909, 914 [2020], lv denied 35 NY3d 1071 [2020]; People v Taylor , 156 AD3d 86, 92 [2017], lv denied 30 NY3d 1120 [2018]).

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

People v. Goins · filed 2022-08-10

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

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

People v. Warren J. T. · filed 2022-08-17

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

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

People v. Taylor · filed 2022-09-14

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

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

People v. Lewis · filed 2022-09-30

We conclude that because "the 'claim of ineffective assistance of counsel cannot be resolved without reference to matter outside of the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the [mixed] claim in its entirety ' " ( People v Wilson [appeal No. 2], 162 AD3d 1591, 1592 [4th Dept 2018]; see People v Johnson , 195 AD3d 1420, 1421-1422 [4th Dept 2021], lv denied 37 NY3d 1146 [2021]; see generally People v Maffei , 35 NY3d 264, 269-270 [2020]).

Section 440.10 provides the procedure for seeking to vacate a plea based on matters outside the appellate record.

People v. Cuatt · filed 2022-09-30

Inasmuch as defendant's contention "involves matters outside the record on appeal[, it] must be raised via a motion pursuant to CPL 440.10" ( People v Congdon , 204 AD3d 1516, 1517 [4th Dept 2022], lv denied 38 NY3d 1070 [2022]; see generally People v Bradley , 196 AD3d 1168, 1169 [4th Dept 2021]; People v Solas , 106 AD2d 417, 417 [2d Dept 1984]).

A CPL 440.10 proceeding is the appropriate forum to review an ineffective-assistance claim that requires facts outside the trial record.

People v. Dunaway · filed 2022-07-27

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

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

People v. Dieye · filed 2022-07-27

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

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

People v. Abad · filed 2022-08-31

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805; People v Maxwell , 89 AD3d 1108).

Section 440.10(2)(c) does not provide an adequate procedural bar to habeas review of a mixed ineffective-assistance claim involving matters outside the trial record.

Mighty v. Cronin · filed 2022-09-30(2)(c)

Accordingly, the Court finds that Justice Kron’s reliance on § 440.10(2)(c) in denying petitioner’s ineffective assistance claim does not constitute an adequate state procedural bar to habeas review of Grounds Eleven through Sixteen and Twenty.

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

People v. Hernandez · filed 2022-10-05

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

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

People v. Lydon · filed 2022-10-12

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d 1108, 1109).

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

People v. Louime · filed 2022-10-26

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

Section 440.10 provides a collateral proceeding for developing ineffective-assistance claims that depend on facts outside the appellate record.

People v. Oballe (Dulvin) · filed 2022-10-27

Lastly, defendant's claim here of ineffective assistance of counsel does not appear to be fully "demonstrable on the main record but rather requires consideration of factual issues not adequately reflected on that record" ( People v Maffei , 35 NY3d 264, 269 [2020] [internal quotation marks omitted]). Thus, "it would be better . . . that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral or post-conviction proceeding brought under CPL 440.10" ( id. at 270 [internal quotation marks omitted]).

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

People v. Bennett · filed 2022-11-10

Defendant's contention that he was deprived of effective assistance of counsel based on defense counsel's failure to call a certain witness to testify at trial involves matters outside the record and therefore must be raised pursuant to a CPL 440.10 motion ( see People v Kaminski , 109 AD3d 1186, 1186 [4th Dept 2013], lv denied 22 NY3d 1088 [2014]; see also People v Griffin , 204 AD3d 1385, 1386 [4th Dept 2022]).

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

People v. Roberts · filed 2022-11-23

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Yancey , 204 AD3d 1044, 1045; People v Corines , 204 AD3d 827, 830).

A CPL 440.10 motion provides a way to raise ineffective assistance claims that depend on matters outside the direct appeal record.

People v. Williams · filed 2022-11-29

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

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

People v. Moore · filed 2022-11-30

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