Opinion
2013-11249 Ind. 12-00371
06-30-2021
The People, etc., respondent, v. Paul Rizzo, appellant.
Gary E. Eisenberg, New City, NY, for appellant, and appellant pro se. Thomas E. Walsh II, District Attorney, New City, NY (Carrie A. Ciganek and Jacob B. Sher of counsel), for respondent.
Argued - May 25, 2021
D66761 I/htr
Gary E. Eisenberg, New City, NY, for appellant, and appellant pro se.
Thomas E. Walsh II, District Attorney, New City, NY (Carrie A. Ciganek and Jacob B. Sher of counsel), for respondent.
CHERYL E. CHAMBERS, J.P. ROBERT J. MILLER VALERIE BRATHWAITE NELSON PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Rockland County (Thomas E. Walsh II, J.), rendered October 29, 2013, convicting him of assault in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed on the conviction of criminal possession of a weapon in the third degree; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Rockland County, for resentencing on the conviction of criminal possession of a weapon in the third degree.
The defendant was charged and tried for the assault of a supermarket security guard, who testified that an individual matching the defendant's description had attacked him with a baseball bat after he denied that individual and his companions entry into the store.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of assault in the second degree and criminal possession of a weapon in the third degree beyond a reasonable doubt (see People v Ozarowski, 38 N.Y.2d 481, 491 n 3; People v Anderson, 161 A.D.3d 1097; People v Gurgov, 129 A.D.3d 989, 990; People v Johnson, 63 A.D.3d 470), and to establish the defendant's identity as the perpetrator (see People v Tripp, 162 A.D.3d 691). 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, 348), 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, 410; People v Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record here, we are satisfied that the verdicts of guilt were not against the weight of the evidence.
The defendant's contention regarding prosecutorial misconduct during summation is without merit, as the prosecutor's remarks were responsive to defense counsel's summation, within the bounds of permissible rhetorical comment, and constituted fair comment on the evidence (see People v Moore, 29 A.D.3d 825, 825-826).
Contrary to the defendant's contention, the fact that the sentence imposed after the trial was more severe than the one offered earlier during plea negotiations does not, standing alone, establish that the defendant was punished for exercising his right to a trial (see People v Arman, 188 A.D.3d 1237, 1238).
As the People correctly concede, the minimum term of imprisonment imposed by the sentencing court on the count of criminal possession of a weapon in the third degree was illegal because it exceeded one-third of the maximum term imposed (see Penal Law §§ 70.00 [2][d]; [3][b]; 265.02), and must be modified accordingly, upon remittal to the County Court, Rockland County (see People v Pettigrew, 274 A.D.2d 976). Neither the maximum sentence imposed on that count, however, nor the sentence imposed on the count of assault in the second degree, were excessive (see People v Suitte, 90 A.D.2d 80).
The defendant's challenges to the felony complaint, raised in his pro se supplemental brief, have been rendered academic, since the felony complaint was superseded by an indictment (see People v Petion, 186 A.D.3d 1410, 1411).
The defendant's further contention, raised in his pro se supplemental brief, that he was deprived of a fair trial based on allegations of alleged prosecutorial and other misconduct, is not reviewable on direct appeal since it relies on matter dehors the record (see CPL 440.10[2][b]; People v Dixon, 138 A.D.3d 1016, 1017; People v Craft, 104 A.D.3d 786, 787-788). Similarly, the defendant's contention that he was deprived of the effective assistance of counsel is based, 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). Under the circumstances, a CPL 440.10 proceeding is the appropriate forum for reviewing such a claim in its entirety, and we decline to review it on this direct appeal (see People v Freeman, 93 A.D.3d 805, 806; People v Maxwell, 89 A.D.3d at 1109).
The defendant's further contention, also raised in his pro se supplemental brief, that the County Court erred in polling the jury, is unpreserved for appellate review because he failed to object before the jury was discharged, at a time when the court could have addressed and remedied the error (see People v Shaver, 86 A.D.3d 800, 802-803; People v Vazquez, 82 A.D.3d 1273, 1274; People v Nairne, 258 A.D.2d 671), and we decline to reach it in the interest of justice.
The defendant's remaining contention, raised in his pro se supplemental brief, is without merit.
CHAMBERS, J.P., MILLER, BRATHWAITE NELSON and WOOTEN, JJ., concur.