Opinion
2013-08852, Ind. No. 4248/12.
07-26-2017
The PEOPLE, etc., respondent, v. George GRANT, appellant.
Lynn W.L. Fahey, New York, NY (Erica Horwitz of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Solomon Neubort, and Arieh Schulman of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Erica Horwitz of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Solomon Neubort, and Arieh Schulman of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered September 4, 2013, convicting him of robbery in the second degree and assault in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support his conviction of robbery in the second degree ( Penal Law § 160.10[2] [a] ) is unpreserved for appellate review (see CPL 470.05[2] ; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ; People v. Terranova, 147 A.D.3d 1086, 1086, 48 N.Y.S.3d 430 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Perez, 132 A.D.3d 911, 912, 18 N.Y.S.3d 399 ; People v. Jaen, 116 A.D.3d 975, 975, 983 N.Y.S.2d 837 ). Moreover, 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, 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 the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ). 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, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 ). The defendant contends that the Supreme Court improperly denied his request to listen to the recordings of telephone calls he made from Rikers Island before transcripts of the recordings were used to impeach his testimony on cross-examination. Contrary to the defendant's contention, the defense was not entitled to the prosecution's impeachment material until after it was used to impeach the defendant on cross-examination (see People v. Lindsay, 131 A.D.3d 625, 626, 16 N.Y.S.3d 566 ; People v. Parchment, 92 A.D.3d 699, 700, 938 N.Y.S.2d 174 ; People v. Gladden, 72 A.D.2d 568, 569, 420 N.Y.S.2d 739 ).
The defendant's contention that his right to due process was violated by the prosecutor's misconduct on summation is unpreserved for appellate review (see CPL 470.05[2] ), as the defendant failed to object, request curative instructions, or timely move for a mistrial (see People v. Dunning, 148 A.D.3d 1047, 1048, 49 N.Y.S.3d 755 ), and we decline to review the contention in the exercise of our interest of justice jurisdiction (see CPL 470.15[3][c] ; [6]; People v. Jones, 139 A.D.3d 878, 880, 31 N.Y.S.3d 191 ; People v. Ellis, 133 A.D.3d 777, 778, 19 N.Y.S.3d 752 ; People v. Belle, 113 A.D.3d 630, 631, 977 N.Y.S.2d 916 ).
The defendant's challenge to the Supreme Court's instructions to the jury is also unpreserved for appellate review, since he failed to request specific instructions or object to the court's charge as given (see CPL 470.05[2] ; People v. Cruz, 96 N.Y.2d 857, 858, 730 N.Y.S.2d 29, 754 N.E.2d 1112 ; People v. Bradford, 137 A.D.3d 928, 929, 25 N.Y.S.3d 902 ). Under the circumstances, we decline to review this contention in the exercise of our interest of justice jurisdiction (see People v. Addison, 107 A.D.3d 730, 731–732, 966 N.Y.S.2d 217 ; People v. Jones, 103 A.D.3d 753, 754, 959 N.Y.S.2d 705 ).
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, 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 (see People v. Ockrey, 142 A.D.3d 511, 511, 35 N.Y.S.3d 921 ). 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. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).