| People v Alverado |
| 2019 NY Slip Op 09221 |
| Decided on December 20, 2019 |
| Appellate Division, Fourth 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 December 20, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., PERADOTTO, TROUTMAN, AND BANNISTER, JJ.
1304 KA 15-00358
v
MARIO ALVERADO, ALSO KNOWN AS MARIO ALVERADO-MATEO, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered February 10, 2015. The judgment convicted defendant, upon a jury verdict, of rape in the first degree and sodomy in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of rape in the first degree (Penal Law § 130.35 [1]) and sodomy in the first degree (former § 130.50 [1]), defendant contends that he was denied effective assistance of counsel as a result of defense counsel's failure to make a motion to dismiss the indictment as time-barred (see CPL 30.10 [2] [former (a)], [b]). The record on appeal, however, "is inadequate to enable us to determine whether such a motion would have been successful and whether defense counsel's failure to make that motion deprived defendant of meaningful representation" (People v Youngs, 101 AD3d 1589, 1589 [4th Dept 2012], lv denied 20 NY3d 1105 [2013]). Thus, we conclude that "defendant's contention is appropriately raised by way of a motion pursuant to CPL article 440" (id.).
Entered: December 20, 2019
Mark W. Bennett
Clerk of the Court