People v. Moncayo

People v Moncayo (2021 NY Slip Op 03613) People v Moncayo 2021 NY Slip Op 03613 Decided on June 9, 2021 Appellate Division, Second 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 June 9, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. CHERYL E. CHAMBERS LEONARD B. AUSTIN COLLEEN D. DUFFY, JJ. 2016-12196 (Ind. No. 3115/13) [*1]The People of the State of New York, respondent, v Eduardo Moncayo, appellant. Paul Skip Laisure, New York, NY (Sean H. Murray of counsel), for appellant, and appellant pro se. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Nancy Fitzpatrick Talcott of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ira H. Margulis, J.), rendered October 24, 2016, convicting him of kidnapping in the first degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. The defendant's claim of ineffective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109; see People v Evans, 16 NY3d 571, 575 n 2). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v Freeman, 93 AD3d 805, 806; People v Maxwell, 89 AD3d at 1109). The defendant failed to preserve for appellate review his contention that the sentence imposed by the Supreme Court improperly penalized him for exercising his right to a jury trial, because he did not set forth the issue on the record at the time of sentencing (see CPL 470.05[2]; People v Hurley, 75 NY2d 887, 888; People v Simmons, 29 AD3d 1024, 1025). In any event, the record fails to establish that the court penalized the defendant for exercising his right to proceed to trial (see People v Martinez, 26 NY3d 196, 200). The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80). The defendant's remaining contentions are unpreserved for appellate review, and we decline to reach them in the exercise of our interest of justice jurisdiction. DILLON, J.P., CHAMBERS, AUSTIN and DUFFY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court