Appellate Division of the Supreme Court of New York, 2013

People v. Acevedo

People v. Acevedo
Appellate Division of the Supreme Court of New York · Decided March 28, 2013
104 A.D.3d 610; 961 N.Y.S.2d 771
People v. Acevedo

Opinion of the Court

Order, Supreme Court, Bronx County (Robert A. Sackett, J.), entered on or about September 7, 2011, which granted defendant’s CPL 440.10 motion to vacate a judgment of conviction, unanimously reversed, on the law, the conviction reinstated, and the matter remanded for further proceedings on the motion.

Although defendant’s CPL 440.10 motion was made on the ground of ineffective assistance of counsel, the court granted the motion solely on the basis of its sua sponte finding that the minutes of defendant’s 2005 plea to falsifying business records in the second degree reflected an insufficient allocution. Since defendant did not appeal from her conviction, and since the defect in the plea allocution is an issue that appears on the record, collateral review of the sufficiency of the allocution is barred by CPL 440.10 (2) (c). In People v Cuadrado (9 NY3d *611362, 365 [2007]), the Court of Appeals expressly declined to create an exception for “fundamental” or “jurisdictional” defects, and defendant’s arguments for collateral review in this regard are unavailing.

We remand for consideration of defendant’s ineffective assistance claim, which the motion court did not reach. Concur— Tom, J.E, Acosta, Saxe, Freedman and Feinman, JJ.

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