People v Joshua A. Montemaro

People v Montemaro 2003 NY Slip Op 20212 [2 AD3d 1423] December 31, 2003 Appellate Division, Fourth Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

The People of the State of New York, Respondent,
v
Joshua A. Montemaro, Appellant.

—Appeal from a judgment of Ontario County Court (Doran, J.), entered February 20, 2002, convicting defendant after a jury trial of, inter alia, assault in the third degree (two counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant contends that he was denied effective assistance of counsel because defense counsel prevented defendant from exercising his right to testify at trial. That contention, however, rests primarily on matters outside the record and thus is not properly raised on direct appeal (see People v Bennett, 284 AD2d 338 [2001], lv denied 96 NY2d 898 [2001]; People v Martin, 271 AD2d 459 [2000], lv denied 95 NY2d 868 [2000]). Present—Pigott, Jr., P.J., Green, Pine, Hurlbutt and Kehoe, JJ.