The People of the State of New York, Respondent, v. Louis Perretta, Appellant. (2025)

ORDERED that the judgment of conviction is affirmed.

By misdemeanor complaint, the People charged defendant with two counts each of criminal contempt in the second degree (Penal Law § 215.50 [3]) and criminal mischief in the fourth degree (Penal Law § 145.00 [1]) after he allegedly violated a valid order of protection on June 25, 2022. The underlying order of protection was issued upon his conviction for criminal contempt in the second degree in April 2022. On September 15, 2022, within 90 days after the case began, the People filed an off-calendar statement of readiness (SOR) and certificate of compliance (COC). On Monday, September 26, 2022, the Criminal Court asked the People, "are you ready today?" to which the prosecutor standing for the assigned assistant district attorney answered no and requested an adjournment to September 29, 2022 without further elaboration. On September 29, 2022, defendant waived further discovery, pleaded guilty to one count of criminal contempt in the second degree in satisfaction of the entire accusatory instrument and was sentenced to a conditional discharge. On appeal, defendant contends that trial counsel provided ineffective assistance by failing to move to dismiss the accusatory instrument on statutory speedy trial grounds because the People failed to explain their change in readiness on September 26, 2022, rendering their SOR illusory.

Defendant's ineffective assistance of counsel claim is not reviewable on direct appeal as consideration thereof necessarily involves matters outside the record, and would require this court to resort to "supposition and conjecture" (People v Rivera, 71 NY2d 705, 709 [1988]; see People v Sun, 74 Misc 3d 136[A], 2022 NY Slip Op 50297[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). 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" (People v Maffei, 35 NY3d 264, 270 [2020] [internal quotation marks omitted]; see People v Abad, 208 AD3d 892, 894 [2022]; People v Oballe, 77 Misc 3d 128[A], 2022 NY Slip Op 51138[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; cf. People v Stiebritz, 192 AD3d 705, 705-706 [2021]).

Accordingly, the judgment of conviction is affirmed.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: January 17, 2025