Summary
holding that defendant's claim that his counsel was ineffective for failing to develop a sufficient factual record at a suppression hearing was not subject to review on direct appeal but was subject to review through a proceeding brought pursuant to article 440 of the Criminal Procedure Law
Summary of this case from Castillo v. HodgesOpinion
November 15, 1995
Appeal from the Onondaga County Court, Mulroy, J.
Present — Denman, P.J., Green, Fallon, Doerr and Balio, JJ.
Judgment unanimously modified on the law and as modified affirmed and new trial granted on count 13 of the indictment in accordance with the following Memorandum: Defendant contends that his statement to the police was obtained in violation of his right to counsel. Although the issue may be raised for the first time on appeal (see, People v Banks, 53 N.Y.2d 819, 821; People v Dyson, 221 A.D.2d 1004 [decided herewith]), the record does not contain facts sufficient to permit appellate review of that contention (see, People v Steele, 135 A.D.2d 673, lv denied 70 N.Y.2d 1011; People v Donovon, 107 A.D.2d 433, 440-442, lv denied 65 N.Y.2d 694). Defendant further contends that defense counsel's failure to develop a sufficient factual record at the suppression hearing constitutes ineffective assistance of counsel. Because that contention rests upon matters outside the record, it is not subject to review on direct appeal (see, People v Ford, 184 A.D.2d 1013, lv denied 80 N.Y.2d 929; People v Robinson, 122 A.D.2d 173, 175, lv denied 68 N.Y.2d 1003). Rather, "the appropriate vehicle by which to obtain review of the defendant's claim of ineffective assistance of counsel is through the commencement of a proceeding pursuant to CPL article 440 [citations omitted]" (People v Steele, supra, at 673).
We reject the contention that defendant was denied a fair trial by cumulative error. The court properly amended the fifth count of the indictment to correct a clerical error (see, People v Spann, 56 N.Y.2d 469, 473; People v Acevedo, 215 A.D.2d 115, lv denied 85 N.Y.2d 969). Defendant's contention that the court erred in submitting the four counts charging criminal use of a firearm to the jury has not been preserved for our review (see, CPL 470.05; People v Garner, 174 A.D.2d 1028, 1029, lv denied 78 N.Y.2d 966; People v Bones, 103 A.D.2d 1012), and we decline to exercise our power to address it as a matter of discretion in the interest of justice (see, CPL 470.15 [a]).
Defendant's conviction of endangering the welfare of a child under count 13 of the indictment must be reversed and a new trial granted on that count because the court erred in its supplemental instruction to the jury. In response to the question whether "knowingly" can be interpreted as "should have known", the court instructed the jury to evaluate defendant's conduct "from the standpoint of a reasonable person" and determine whether that person "should have known and been aware that their conduct would have been injurious to the physical, mental, or moral welfare of a child." A person is guilty of endangering the welfare of a child only when he acts knowingly (Penal Law § 260.10; § 15.05). Because the degree of culpability required by the statute is actual knowledge, it was reversible error to charge the jury that it could find defendant guilty based upon what he should have known (see, People v Price, 19 A.D.2d 730).