People v. Johnson

Jul 28, 2009
Reporters:
,

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 AD3d 1220 [2009]; People v James, 269 AD2d 845, 846 [2000]; People v Juhans, 147 AD2d 658 [1989]). The defendant‘s claim may properly be reviewed only in the context of a post-judgment motion to vacate pursuant to CPL article 440 (see People v Maldonado, 61 AD3d at 1220; People ‍​‌‌‌​‌​​​​​‌‌‌‌​‌‌​​​‌​​​​​‌​​‌​‌‌‌​‌‌​‌‌‌‌​‌‌​‌​‌​​‌​‌​​‌‌‌​‌​​‌‌​‌‌‌​‌​‌​‌‌‌​​‌‌​‌‌‌​​​​​​​​‌​‍v James, 269 AD2d at 846; People v Juhans, 147 AD2d at 658; see also People v Harris, 109 AD2d 351, 360 [1985]; CPL 440.10 [1] [h]).