Opinion
April 30, 1987
Appeal from the County Court of Greene County (Fromer, J.).
On August 1, 1985, while an inmate at Coxsackie Correctional Facility, defendant was involved in an incident with a fellow inmate, Booker Wynn. During the altercation, defendant used a sharpened metal spike in an attempt to stab Wynn. Correction Officer Thomas Seeburger interceded to restrain defendant and was struck in the face and head by defendant's elbow. Defendant was subsequently indicted and thereafter entered a plea of guilty to attempted assault in the second degree, assault in the second degree and promoting prison contraband in the first degree. He was given prison sentences of 2 to 4 years on the attempted assault charge and 2 1/2 to 5 years on each of the other two charges, the sentences are to run concurrently to one another but consecutively to the sentence he was then serving.
On this appeal defendant's only contention of error is that he was denied effective assistance of counsel. The facts regarding this issue in this case are similar to those in People v Wolcott ( 111 A.D.2d 943) and an affirmance is therefore required. In Wolcott it was alleged, inter alia, that the ineffective assistance of counsel consisted of defense counsel's refusal to consider a "list of witnesses" available for trial (supra, at 944). In the case at bar defendant asserts that his attorney failed to conduct an adequate investigation in locating witnesses to testify on his behalf. This allegation is based on matters not in the record and, although it is not reviewable on direct appeal, it would appear that review via a CPL 440.10 motion may be available (see, CPL 440.30; People v Wolcott, supra, at 944; People v Welch, 108 A.D.2d 1020).
Judgment affirmed. Mahoney, P.J., Main, Mikoll, Levine and Harvey, JJ., concur.