Opinion
2015-03-25
The PEOPLE, etc., respondent, v. Ronald SHAW, appellant.
Dennis Claus, Syracuse, N.Y., for appellant, and appellant pro se. David M. Hoovler, District Attorney, Middletown, N.Y. (Andrew R. Kass of counsel), for respondent.
Dennis Claus, Syracuse, N.Y., for appellant, and appellant pro se. David M. Hoovler, District Attorney, Middletown, N.Y. (Andrew R. Kass of counsel), for respondent.
RUTH C. BALKIN, J.P., SHERI S. ROMAN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.), rendered October 9, 2008, convicting him of rape in the first degree (three counts), sexual abuse in the first degree, and assault in the second degree, upon a jury verdict, and imposing sentence.
The defendant's contention that he was deprived of his constitutional right to present a complete defense by the Supreme Court's application of the Rape Shield Law (CPL 60.42) to exclude evidence of unidentified semen found on the complainant's underwear is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Simmons, 106 A.D.3d 1115, 1116, 965 N.Y.S.2d 618). In any event, the defendant's right to present a defense was not unduly curtailed by the court's application of the Rape Shield Law ( see People v. Simmons, 106 A.D.3d at 1116, 965 N.Y.S.2d 618; People v. Weinberg, 75 A.D.3d 612, 613, 904 N.Y.S.2d 906).
The defendant's contention that he was deprived of a fair trial by being compelled to appear before a panel of prospective jurors in his prison garb is unpreserved for appellate review and, in any event, without merit ( seeCPL 470.05[2]; Estelle v. Williams, 425 U.S. 501, 512–513, 96 S.Ct. 1691, 48 L.Ed.2d 126; People v. Bullock, 28 A.D.3d 673, 673, 813 N.Y.S.2d 223).
The defendant's challenge to the legal sufficiency of the evidence, raised in his pro se supplemental brief, is unpreserved for appellate review ( seeCPL 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 prosecution ( 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, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 348, 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, 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). Contrary to the defendant's contention in his pro se supplemental brief, 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, 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). 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, 853–854, 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. 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 sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's remaining contention is improperly raised for the first time in his reply brief ( see People v. Winkfield, 90 A.D.3d 959, 960, 935 N.Y.S.2d 130).