Opinion
2016–07026 Ind. No. 14–01635
12-26-2018
The PEOPLE, etc., Respondent, v. Jonathan MALDONADO, Appellant.
Del Atwell, East Hampton, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco and William C. Milaccio of counsel), for respondent.
Del Atwell, East Hampton, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco and William C. Milaccio of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that his waiver of the right to a jury trial was invalid is unpreserved for appellate review (see CPL 470.05[2] ; People v. Johnson, 51 N.Y.2d 986, 987, 435 N.Y.S.2d 713, 416 N.E.2d 1048 ; People v. Tucker, 151 A.D.3d 1085, 1087, 58 N.Y.S.3d 461 ; People v. Williams, 149 A.D.3d 986, 986, 50 N.Y.S.3d 305 ). In any event, the record does not support the defendant's contention that his waiver of the right to a jury trial was not knowing, voluntary, and intelligent (see People v. Williams, 149 A.D.3d at 986, 50 N.Y.S.3d 305 ; People v. Pazmini, 132 A.D.3d 1015, 1015, 18 N.Y.S.3d 359 ; People v. Fani, 59 A.D.3d 460, 460, 872 N.Y.S.2d 535 ).
The record also demonstrates that the defendant's express waiver of his right to be present at sidebar conferences (see People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95 ) was made knowingly, voluntarily, and intelligently (see People v. Vargas, 88 N.Y.2d 363, 375–378, 645 N.Y.S.2d 759, 668 N.E.2d 879 ).
Contrary to the defendant's contention, the evidence adduced at trial, viewed 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 ), was legally sufficient to disprove the defendant's justification defense beyond a reasonable doubt (see Penal Law § 35.15[1] ; People v. Acquista, 41 A.D.3d 491, 492, 837 N.Y.S.2d 309 ; People v. Williams, 304 A.D.2d 595, 595, 759 N.Y.S.2d 329 ). 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 factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 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 on the count of gang assault in the second degree 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 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 (see People v. Cruz, 127 A.D.3d 987, 988, 6 N.Y.S.3d 644 ; People v. Robles, 116 A.D.3d 1071, 1071, 983 N.Y.S.2d 885 ). As 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. 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., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.