People v. Copeland , 148 A.D.3d 719 ( 2017 )

People v Copeland (2017 NY Slip Op 01562)

People v Copeland

2017 NY Slip Op 01562

Decided on March 1, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 1, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
JOHN M. LEVENTHAL
L. PRISCILLA HALL
JEFFREY A. COHEN, JJ.

2015-12167
(Ind. No. 14-01633)

[*1]The People of the State of New York, respondent,

v

Phillip Copeland, appellant.

Marianne Karas, Thornwood, NY, for appellant.

Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Jennifer Spencer and Laurie G. Sapakoff of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered October 20, 2015, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's claim that he was deprived of the constitutional right to 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). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (see People v Addison, 107 AD3d 730, 732; cf. People v Crump, 53 NY2d 824; People v Brown, 45 NY2d 852). Since the defendant's claim of ineffective assistance of counsel 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 (see People v Addison, 107 AD3d at 732; People v Freeman, 93 AD3d 805, 806; People v Maxwell, 89 AD3d at 1109).

MASTRO, J.P., LEVENTHAL, HALL and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court