The People, etc., respondent, v. Solne Martinez, appellant. (2021)

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

The People, etc., respondent, v. Solne Martinez, appellant.

2016–01191 (Ind.No. 2393 /12)

Decided: May 26, 2021

HECTOR D. LASALLE, P.J. SYLVIA O. HINDS–RADIX FRANCESCA E. CONNOLLY LINDA CHRISTOPHER, JJ.

Paul Skip Laisure, New York, N.Y. (A. Alexander Donn and David P. Greenberg of counsel), for appellant, and appellant pro se. Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, William H. Branigan, Vinnette K. Campbell, and Katherine A. Triffon of counsel), for respondent. The defendant's contention, raised in his pro se supplemental brief, 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 AD3d 1108, 1109;  see People v Evans, 16 NY3d 571, 575 n 2).  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 Maxwell, 89 AD3d at 1109).