People v Johnson
2009 NY Slip Op 06037 [64 AD3d 792]
July 28, 2009
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, September 2, 2009

The People of the State of New York, Respondent,
Darrin Johnson, Appellant.

[*1] David L. Rich, White Plains, N.Y., for appellant, and appellant pro se.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered February 15, 2005, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that he was denied his right to the effective assistance of counsel. In support of his contention, the defendant alleges that before he entered his plea of guilty, his attorney improperly advised him regarding how a period of incarceration in another state would affect his adjudication as a persistent violent felony offender. However, because the defendant's claim of ineffective assistance of counsel is based upon matter dehors the record, the defendant's claim is not properly before this Court on direct appeal (see People v Maldonado, 61 AD3d 1220 [2009]; People v James, 269 AD2d 845, 846 [2000]; People v Juhans, 147 AD2d 658 [1989]). The defendant's claim may properly be reviewed only in the context of a postjudgment motion to vacate pursuant to CPL article 440 (see People v Maldonado, 61 AD3d at 1220; People v James, 269 AD2d at 846; People v Juhans, 147 AD2d at 658; see also People v Harris, 109 AD2d 351, 360 [1985]; CPL 440.10 [1] [h]). Prudenti, P.J., Miller, Covello and Austin, JJ., concur.