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

The PEOPLE, etc., respondent, v. Darrin JOHNSON, appellant.

Decided: July 28, 2009

A. GAIL PRUDENTI, P.J., HOWARD MILLER, JOSEPH COVELLO, and LEONARD B. AUSTIN, JJ. David L. Rich, White Plains, N.Y., for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered February 15, 2005, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that he was denied his right to the effective assistance of counsel.   In support of his contention, the defendant alleges that before he entered his plea of guilty, his attorney improperly advised him regarding how a period of incarceration in another state would affect his adjudication as a persistent violent felony offender.   However, because the defendant's claim of ineffective assistance of counsel is based upon matter dehors the record, the defendant's claim is not properly before this Court on direct appeal (see People v. Maldonado, 61 A.D.3d 1220, 876 N.Y.S.2d 661;  People v. James, 269 A.D.2d 845, 846, 703 N.Y.S.2d 793;  People v. Juhans, 147 A.D.2d 658, 538 N.Y.S.2d 59).   The defendant's claim may properly be reviewed only in the context of a postjudgment motion to vacate pursuant to CPL article 440 (see People v. Maldonado, 61 A.D.3d at 1220, 876 N.Y.S.2d 661;  People v. James, 269 A.D.2d at 846, 703 N.Y.S.2d 793;  People v. Juhans, 147 A.D.2d at 658, 538 N.Y.S.2d 59;  see also People v. Harris, 109 A.D.2d 351, 360, 491 N.Y.S.2d 678;  CPL 440.10[1][h] ).

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