Opinion
2013–09043 Ind. No. 7231/12
04-21-2021
The PEOPLE, etc., respondent, v. Calvin COOPER, appellant.
Law Offices of Kenneth F. Smith, PLLC, Brooklyn, NY, for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob of counsel), for respondent.
Law Offices of Kenneth F. Smith, PLLC, Brooklyn, NY, for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob of counsel), for respondent.
REINALDO E. RIVERA, J.P., ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mark Dwyer, J.), rendered August 19, 2013, convicting him of reckless endangerment in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that the Supreme Court violated its obligations under CPL 310.30 and People v. O'Rama, 78 N.Y.2d 270, 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189 in responding to a jury note, which requested photographs that had been admitted into evidence, is unpreserved for appellate review (see CPL 470.05[2] ; People v. Whitfield, 186 A.D.3d 1414, 1415, 129 N.Y.S.3d 532 ; People v. Nunez–Garcia, 178 A.D.3d 1087, 1090, 117 N.Y.S.3d 56 ). In any event, the defendant's contention is without merit. Defense counsel agreed that the court could furnish the jury with exhibits upon its request, without reconvening. Where a defendant consents beforehand, a court may furnish the jury with evidentiary exhibits without reconvening (see CPL 310.20[1] ; People v. Damiano, 87 N.Y.2d 477, 487, 640 N.Y.S.2d 451, 663 N.E.2d 607 ; People v. Headley, 170 A.D.3d 746, 747, 95 N.Y.S.3d 329 ; People v. Kirk, 27 A.D.3d 383, 384, 812 N.Y.S.2d 492 ). The court's handling of the jury note requesting evidentiary exhibits did not implicate either CPL 310.30 or the provisions outlined in People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (see People v. Damiano, 87 N.Y.2d at 487, 640 N.Y.S.2d 451, 663 N.E.2d 607 ; People v. Whitfield, 186 A.D.3d at 1415, 129 N.Y.S.3d 532 ; People v. Headley, 170 A.D.3d at 747, 95 N.Y.S.3d 329 ).
The defendant's contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a "mixed claim of ineffective assistance" ( People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
The defendant's remaining contentions are without merit.
RIVERA, J.P., MILLER, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.