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People v. Johnson

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


July 28, 2009

THE PEOPLE, ETC., RESPONDENT,
v.
DARRIN JOHNSON, APPELLANT.

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.

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.

A. GAIL PRUDENTI, P.J., HOWARD MILLER, JOSEPH COVELLO and LEONARD B. AUSTIN, JJ.

(Ind. No. 6240/03)

DECISION & ORDER

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 Maldanado, 61 AD3d 1220; People v James, 269 AD2d 845, 846; People v Juhans, 147 AD2d 658). 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 Maldanado, 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; CPL 440.10[1][h]).

PRUDENTI, P.J., MILLER, COVELLO and AUSTIN, JJ., concur.

20090728

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