Opinion
2016-12672 Ind. No. 3537/13
12-15-2021
The PEOPLE, etc., respondent, v. Robert WILLIAMS, appellant.
Patricia Pazner, New York, NY (Benjamin Welikson of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Seth M. Lieberman, and Ann Bordley of counsel), for respondent.
Patricia Pazner, New York, NY (Benjamin Welikson of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Seth M. Lieberman, and Ann Bordley of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, ANGELA G. IANNACCI, WILLIAM G. FORD, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Raymond Guzman, J.), rendered November 16, 2016, convicting him of assault in the second degree as a sexually motivated felony, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
On appeal, the defendant contends that he was denied the effective assistance of counsel. A defendant's right to the effective assistance of counsel is guaranteed by the Federal and the State Constitutions (see U.S. Const, 6th Amend; NY Const, art I, § 6 ). "To prevail on a claim of ineffective assistance, defendants must demonstrate that they were deprived of a fair trial by less than meaningful representation" ( People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19 ). "Meaningful representation is determined by an examination of the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation" ( People v. Mendoza, 33 N.Y.3d 414, 418, 104 N.Y.S.3d 38, 128 N.E.3d 165 [internal quotation marks omitted]; see People v. Oliveras, 21 N.Y.3d 339, 346, 971 N.Y.S.2d 221, 993 N.E.2d 1241 ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). It is the defendant's burden "to demonstrate the absence of strategic or other legitimate explanations" for counsel's alleged shortcomings ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ; see People v. Faulk, 185 A.D.3d 953, 956, 128 N.Y.S.3d 43 ), and counsel's performance is "objectively evaluated to determine whether it was consistent with strategic decisions of a reasonably competent attorney" ( People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [citation and internal quotation marks omitted]; see People v. Mendoza, 33 N.Y.3d at 418, 104 N.Y.S.3d 38, 128 N.E.3d 165 ).
Here, the defendant contends that he was denied the effective assistance of counsel, due to his attorney's failure to: (1) object to allegedly inadmissible DNA evidence, (2) highlight allegedly inconclusive test results, (3) move to reopen a suppression hearing after evidence of alleged police misconduct came to light, and (4) object to allegedly inadmissible bolstering testimony.
As the People correctly contend, 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, quoting People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ; see People v. Taylor, 156 A.D.3d 86, 91–92, 64 N.Y.S.3d 714 ). 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, and we decline to review the claim on this direct appeal (see People v. Jones, 105 A.D.3d 1059, 1060–1061, 963 N.Y.S.2d 399 ; 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 ; cf. People v. Robinson, 166 A.D.3d 661, 662, 84 N.Y.S.3d 912 ; People v. Daniels, 164 A.D.3d 599, 600, 78 N.Y.S.3d 678 ).
The defendant's remaining contentions either are without merit or constitute harmless error on this record (see generally People v. LaRoche, 162 A.D.3d 684, 685, 78 N.Y.S.3d 222 ; People v. Massillon, 137 A.D.3d 1169, 1169, 26 N.Y.S.3d 884 ; People v. Whitlock, 95 A.D.3d 909, 911, 943 N.Y.S.2d 227 ).
CHAMBERS, J.P., MILLER, IANNACCI and FORD, JJ., concur.