People v Hidalgo, 2020 NY Slip Op 01362 [180 AD3d 1070]

February 26, 2020

Appellate Division, Second Department

[*1]

The People of the State of New York, Respondent,

v

Fabrico Hidalgo, Appellant.

B. Alan Seidler, New York, NY, for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Ayelet Sela of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Suzanne J. Melendez, J.), rendered May 11, 2017, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention 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 AD3d 1108 , 1109 [2011]; see People v Evans , 16 NY3d 571 , 575 n 2 [2011]). 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, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805 , 806 [2012]; People v Maxwell , 89 AD3d at 1109). Chambers, J.P., Austin, Miller and Christopher, JJ., concur..