PEOPLE v. TOLAND

MERCURE, J.P.

We reject the contention that County Court erred in limiting the record on appeal to documents that were received in evidence or filed with the clerk in connection with this criminal action against defendant (see, People v. Hoppe, 239 A.D.2d 777; People v. Brown, 233 A.D.2d 764, 766, lv denied 89 N.Y.2d 1009; Matter of Yanoff v. Commissioner of Educ. of State of N.Y., 64 A.D.2d 763). A motion pursuant to CPL 440.10, and not a direct appeal, is the appropriate vehicle for presenting a claim of ineffective assistance of counsel based upon matters that are outside the record (see, People v. Nusbaum, 222 A.D.2d 723, 725, lv denied 87 N.Y.2d 1023; People v. Garcia, 187 A.D.2d 868, lv denied 81 N.Y.2d 885). We modify County Court's order only to the extent of correcting its inadvertent omission of the presentence report and statement pursuant to CPLR 5531, which the People concede are properly includable in the record on appeal.

Crew III, Spain, Carpinello and Mugglin, JJ., concur.

ORDERED that the order is modified, on the law, by providing for inclusion of the statement pursuant to CPLR 5531 in the record on appeal and the filing of the presentence investigation report with the clerk of this court, and, as so modified, affirmed.