| N.Y. App. Div. | May 19, 1992
— Appeal from a judgment of the Supreme Court, New York County (Edith Miller, J.), rendered June 26, 1985, convicting defendant, after a jury trial, of burglary in the first degree and robbery in both the first and second degrees and sentencing him to three concurrent terms of imprisonment of from 4 to 12 years, is held in abeyance, and the matter remanded for a hearing and disposition, pursuant to CPL 440.10, on defendant’s claim of ineffective assistance of trial counsel.
After trial but prior to sentencing, defendant complained to the court that his attorney had refused to allow him to testify on his own behalf and failed to investigate alibi witnesses. At sentencing, defense counsel, perceiving his continued representation of defendant a conflict of interest, joined in the defendant’s motion to be relieved. The court denied the motion on the ground that defendant could raise the issue on appeal, apparently pursuant to CPL 440.10 (2) (b). To the contrary, there are insufficient facts in the record to permit review of defendant’s claim of ineffective assistance of trial counsel. Accordingly, the matter is remanded for a hearing and disposition on the claim, pending which the appeal is held in abeyance. Concur — Sullivan, J. P., Milonas, Wallach, Kupferman and Asch, JJ.