New York Supreme and/or Appellate Courts Appellate Division, First Department
March 28, 2013
THE PEOPLE OF THE STATE OF NEW YORK, DKT. 9980C/05 APPELLANT,
YUDELKA ACEVEDO, DEFENDANT-RESPONDENT.
People v Acevedo
Decided on March 28, 2013
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.
Tom, J.P., Acosta, Saxe, Freedman, Feinman, JJ.
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 362, 365 ), 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.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 28, 2013
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