Opinion
08-03-2016
The PEOPLE, etc., respondent, v. Thomas OCKREY, also known as Ockrey Thomas, appellant.
Lynn W.L. Fahey, New York, NY (Jenin Younes of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, Keith Dolan, and Sullivan & Cromwell LLP [Christopher B. Greene ], of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Jenin Younes of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, Keith Dolan, and Sullivan & Cromwell LLP [Christopher B. Greene ], of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered July 19, 2013, convicting him of assault in the first degree and criminal possession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention, raised in his main brief and his pro se supplemental brief, that he was deprived of 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 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see People v. Evans, 16 N.Y.3d 571, 575, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). 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. Fabers, 133 A.D.3d 616, 617–618, 20 N.Y.S.3d 89 ; People v. Addison, 107 A.D.3d 730, 732, 966 N.Y.S.2d 217 ). 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. Guzman, 138 A.D.3d 1140, 31 N.Y.S.3d 146 ; People v. Renaud, 137 A.D.3d 818, 820–821, 27 N.Y.S.3d 578 ; People v. Addison, 107 A.D.3d at 732, 966 N.Y.S.2d 217 ; People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
MASTRO, J.P., RIVERA, SGROI and MALTESE, JJ., concur.