PEOPLE v. WORNELL

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Justin WORNELL, appellant.

-- December 04, 2013

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, ROBERT J. MILLER, JJ. Kasnia Law, PLLC, Poughkeepsie, N.Y. (Cynthia G. Kasnia of counsel), for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Dutchess County (Greller, J.), rendered March 8, 2012, convicting him of rape in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's claim of ineffective assistance of counsel is based on matter dehors the record and, therefore, cannot be reviewed on direct appeal (see People v. Nugent, 109 AD3d 625; People v.. Miller, 68 AD3d 1135; People v. Shemack, 46 AD3d 582, 583). The defendant's related claim that the alleged ineffective assistance of counsel rendered his plea unknowing, unintelligent, and involuntary is also based on matter dehors the record and, thus, cannot be reviewed on direct appeal (see People v. Morrison, 51 AD3d 1041; People v. DeLuca, 45 AD3d 777).

DECISION & ORDER ON MOTION

Motion by the respondent, inter alia, to strike stated portions of the record and the appellant's brief on an appeal from a judgment of the County Court, Dutchess County, rendered March 8, 2012, on the ground that the record contains matter dehors the record and the brief refers to matter dehors the record. By decision and order on motion of this Court dated July 2, 2013, that branch of the motion which is to strike from the record the affidavits on pages 59 through 62 of the record and those portions of the brief which refer to those affidavits was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the submission of the appeal, it is

ORDERED that the branch of the motion which is to strike from the record the affidavits on pages 59 through 62 of the record and those portions of the brief which refer to those affidavits is granted, and those portions of the record and the appellant's brief are stricken and have not been considered on the appeal (see People v. DeLuca, 45 AD3d 777).

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