PEOPLE v. PALACIOS ACOSTA (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Nassau County (Howard E. Sturim, J.), rendered July 9, 2024, convicting him of attempted robbery in the second degree and robbery in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the People failed to comply with the disclosure requirements of CPL article 245 prior to his plea of guilty.  He further contends that he did not validly waive the disclosure requirements of CPL article 245.  However, these contentions are unpreserved for appellate review, as the defendant did not move to vacate his plea prior to the imposition of sentence or otherwise raise the issues in the County Court, although he had ample time to do so (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Guerrero, 236 A.D.3d 818, 818, 227 N.Y.S.3d 740).  We decline to review these contentions in the exercise of our interest of justice jurisdiction (see People v. Gavidia, 151 A.D.3d 883, 883, 53 N.Y.S.3d 837;  People v. Thomas, 148 A.D.3d 734, 47 N.Y.S.3d 715).

The defendant's contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record and, thus, constitutes a “mixed claim of ineffective assistance” (People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386;  see People v. Evans, 16 N.Y.3d 571, 575 n 2, 925 N.Y.S.2d 366, 949 N.E.2d 457).  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 A.D.3d 805, 940 N.Y.S.2d 314;  People v. Maxwell, 89 A.D.3d at 1108, 933 N.Y.S.2d 386).

DUFFY, J.P., CONNOLLY, LOVE and QUIRK, JJ., concur.