Opinion
2012-01202, Ind. No. 929/10.
04-20-2016
The PEOPLE, etc., respondent, v. John DIXON, appellant.
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott, and Ayelet Sela of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott, and Ayelet Sela of counsel), for respondent.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, and SYLVIA O. HINDS–RADIX, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.), rendered January 20, 2012, convicting him of rape in the first degree, assault in the second degree, and sexual abuse in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention, raised in his pro se supplemental brief, that the evidence was legally insufficient to support his conviction is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon our independent review of the evidence pursuant to CPL 470.15(5), 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, 644–645, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention, raised in his pro se supplemental brief, that he was deprived of a fair trial based on several instances of alleged prosecutorial misconduct is not reviewable on direct appeal since the record contains insufficient evidence for this Court to review the defendant's claim (see CPL 440.10[2][b] ; People v. Craft, 104 A.D.3d 786, 787–788, 961 N.Y.S.2d 255 ). The defendant's claim in this regard may properly be reviewed only in the context of a motion to vacate the judgment of conviction pursuant to CPL 440.10, which is designed for the purpose of developing matter dehors the record (see People v. Craft, 104 A.D.3d at 788, 961 N.Y.S.2d 255 ; People v. Franklin, 77 A.D.3d 676, 908 N.Y.S.2d 359 ).
The defendant's contention, raised in his pro se supplemental brief, 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 ). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (cf. People v. Crump, 53 N.Y.2d 824, 825, 440 N.Y.S.2d 170, 422 N.E.2d 815 ; People v. Brown, 45 N.Y.2d 852, 853, 410 N.Y.S.2d 287, 382 N.E.2d 1149 ). 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 (see People v. Marryshow, 135 A.D.3d 964, 965, 24 N.Y.S.3d 170 ; 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 contention, raised in his pro se supplemental brief, is unpreserved for appellate review and, in any event, without merit.