People v Barro

People v Barro 2016 NY Slip Op 07271 Decided on November 3, 2016 Appellate Division, First 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 November 3, 2016
Friedman, J.P., Renwick, Feinman, Gische, Kapnick, JJ.
2135 5453/12

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

v

Jelani Barro, Defendant-Appellant.

Richard M. Greenberg, Office of the Appellate Defender, New York (Alejandro B. Fernandez of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), for respondent.

Judgment, Supreme Court, New York County (Larry R.C. Stephen, J.), rendered January 17, 2014, convicting defendant, upon his plea of guilty, of operating a motor vehicle while under the influence of alcohol or drugs, and sentencing him to a conditional discharge for a period of 3 years and a $1,000 fine, unanimously affirmed.

Defendant's ineffective assistance of counsel claim based on his counsel's failure to challenge the use of an out-of-state conviction to elevate a misdemeanor to a felony charge is unreviewable on direct appeal, because the record does not explain counsel's reasons for declining to raise such a challenge (see People v Diaz, 115 AD3d 483, 484 [1st Dept 2014], lv denied 23 NY3d 1036 [2014]; People v Rincon, 62 AD3d 574, 575 [1st Dept 2009], lv denied 13 NY3d 748 [2009]). Thus, since defendant has not filed a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. Alternatively, to the extent the record permits review, we find that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 3, 2016

CLERK