Opinion
2013-07-31
The PEOPLE, etc., respondent, v. Michael WASHINGTON, appellant.
Christopher Renfroe, Forest Hills, N.Y. (Ros Kofman and Arthur Lebedin of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Anastasia Spanakos of counsel), for respondent.
Christopher Renfroe, Forest Hills, N.Y. (Ros Kofman and Arthur Lebedin of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Anastasia Spanakos of counsel), for respondent.
Appeal by the defendant from a judgment of Supreme Court, Queens County (Lasak, J.), rendered July 28, 2008, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and tampering with physical evidence, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contentions, the prosecutor's summation comments constituted fair comment on the evidence ( see People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564;People v. Gouveia, 88 A.D.3d 814, 930 N.Y.S.2d 677) or a fair response to arguments and theories presented in the defense's summation ( see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885;People v. Gouveia, 88 A.D.3d 814, 930 N.Y.S.2d 677;People v. Crawford, 54 A.D.3d 961, 863 N.Y.S.2d 830), or were harmless, as the evidence of the defendant's guilt was overwhelming, and there is no significant probability that the allegedly improper comments contributed to the defendant's conviction ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787;People v. Hill, 286 A.D.2d 777, 778, 730 N.Y.S.2d 723).
The defendant's further 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, quoting People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457,cert. denied ––– U.S. ––––, 132 S.Ct. 325, 181 L.Ed.2d 201). 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, 440 N.Y.S.2d 170, 422 N.E.2d 815;People v. Brown, 45 N.Y.2d 852, 410 N.Y.S.2d 287, 382 N.E.2d 1149). Since the defendant's claim of ineffective assistance 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;People v. Rohlehr, 87 A.D.3d 603, 604, 927 N.Y.S.2d 919).