People v. Acevedo — 104 A.D.3d 610

Majority

p. 610

The People of the State of New York, Appellant, v Yudelka Acevedo, Respondent.

[961 NYS2d 771]

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

p. 611

362 , 365 [2007]), 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. Concur— Tom, J.E, Acosta, Saxe, Freedman and Feinman, JJ.