“Here, defendant’s claim of ineffective assistance of counsel is grounded upon matters appearing both on the record and outside the record, and therefore constitutes, as the Court of Appeals has termed it, a ‘mixed claim[ ]’ of ineffective assistance . . . . We therefore hold that ‘such a mixed claim, presented in a CPL 440.10 motion, is not procedurally barred, and the CPL 440.10 proceeding is the appropriate forum for reviewing the claim of ineffectiveness in its entirety’“
How later courts described this case
- “Here, defendant’s claim of ineffective assistance of counsel is grounded upon matters appearing both on the record and outside the record, and therefore constitutes, as the Court of Appeals has termed it, a ‘mixed claim[ ]’ of ineffective assistance . . . . We therefore hold that ‘such a mixed claim, presented in a CPL 440.10 motion, is not procedurally barred, and the CPL 440.10 proceeding is the appropriate forum for reviewing the claim of ineffectiveness in its entirety’“
Written by the judges who cited it.
The opinion
Egan Jr., J. (concurring in part and dissenting in part). We concur with the majority’s holding that, in assessing a claim of ineffective assistance of counsel, the reviewing court should consider the seriousness of the alleged errors committed by trial counsel in their entirety (see People v Wright, 25 NY3d 769, 779 [2015]; People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]), and that where, as here, the claim is based upon facts appearing both on the record and outside the record—i.e., a “mixed claim[ ]” of ineffective assistance (People v Evans, 16 NY3d 571 , 575 n 2 [2011], cert denied 565 US 912 [2011])—a CPL 440.10 motion is the appropriate avenue for reviewing the entirety of the claim and is not otherwise procedurally foreclosed (see People v Maxwell, 89 AD3d 1108, 1109 [2011]). With respect to the relief being granted in this specific case—i.e., reversal of the order and granting the motion to vacate the judgment of conviction—we find it premature and therefore dissent in part.
Under our holding, it is certainly appropriate that we analyze both nonrecord-based claims of attorney error now raised on the motion and record-based evidence of attorney error that were raised, or capable of being raised, on the appeal from the judgment of conviction, and consider whether those claims have merit and combine in the collective to constitute ineffective assistance of counsel. We do not disagree that defendant has alleged a series of specific deficiencies with respect to the effectiveness of his trial counsel which, if established, in toto, may entitle defendant to the relief being sought (see People v Mosley, 121 AD3d 1169, 1173-1174 [2014], lv denied 24 NY3d 1086 [2014]). The lack of objection to County Court’s allegedly coercive Allen charge and sufficiency of the request by defendant’s counsel for a justification charge pursuant to Penal Law § 35.05 were fully documented in the trial record. 1 In our opinion, however, inasmuch as the claims regarding the failure of defendant’s counsel to impeach the cabdriver with a prior statement arguably inconsistent with his trial testimony and request a lesser included charge have not been affirmatively conceded by the People nor supported by “unquestionable documentary proof” (CPL 440.30 [3] [c]; see generally People v Baxley, 84 NY2d 208, 214 [1994]), they have not been conclusively established at this juncture, and we cannot therefore conclude that either constitutes attorney error. 2 Instead of reversing the order and vacating the judgment of conviction, we would reverse the order and remit the matter for an evi-dentiary hearing at which defendant’s counsel would be allowed to explain his action or inaction and permit County Court to determine the merits of defendant’s claim (see CPL 440.30 [5]; People v Mosley, 121 AD3d at 1174 ; see also People v Sposito, 140 AD3d 1308, 1312 [2016], lv granted 28 NY3d 1075 [2016]; People v Hoyte, 273 AD2d 48, 48-49 [2000]).
Mulvey and Pritzker, JJ., concur with Peters, P.J.; Egan Jr., J., concurs in part and dissents in part in a separate opinion in which Devine, J., concurs. Ordered that the order is reversed, on the law, motion granted and matter remitted to the County Court of Saratoga County for a new trial.
. Therefore, these claims of error were capable of being raised on the direct appeal from the judgment of conviction.
. The judge who denied the CPL 440.10 motion without a hearing did not preside over the trial.