224 F.3d 129, 132 (2d Cir.2000); see also Hizbullahankhamon v. Walker, 255 F.3d 65, 68 (2d Cir.2001), cert. denied, - U.S. -, 122 S.Ct. 2593, 153 L.Ed.2d 782 (2002). 2 . Under CPL § 440.10, a state court would have discretion, but would not be required, to deny Pratt's allegation that counsel’s failure to pursue an alibi defense constituted ineffective assistance, as the trial record failed to provide an adequate basis for review on direct appeal. CPL § 440.10(2) mandates denial if "sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion ...." CPL § 440.10(2)(c); see People v. Delarosa, 287 A.D.2d 735, 736, 732 N.Y.S.2d 108, 110 (N.Y.App.Div.2001) (<HOLDING>). Rather, Pratt's alibi allegation falls under
holding that the defendants failure to timely serve a notice of appeal and docketing statement did not prejudice the plaintiff and therefore would not serve as a basis to dismiss the appeal holding that question of whether trial counsel failed to serve a timely alibi notice is a matter dehors the record which could not be reviewed on direct appeal and therefore should not result in a mandatory denial under cpl  440102b recognizing that the rule disallowing matters of record to be raised on a 44010 motion is designed to prevent cpl 44010 from being employed as a substitute for direct appeal when defendant was in a position to raise an issue on appeal or could readily have raised it on appeal but failed to do so holding that prejudice should be presumed where counsel filed notice of appeal but failed to perfect the direct appeal holding that the complete denial of counsel on direct appeal requires a finding of prejudice