Opinion
570780/17
11-02-2020
PEOPLE of the State of New York, Respondent, v. Augustus WILSON, Defendant-Appellant.
Per Curiam.
Judgment of conviction (Beth Beller, J.), rendered December 1, 2017, affirmed.
The verdict convicting defendant of attempted criminal obstruction of breathing or blood circulation (see Penal Law §§ 110.00, 121.11[a] ) was not against the weight of the evidence (see People v. Danielson , 9 NY3d 342, 348-349 [2007] ). The credibility issues raised by defendant, including the inconsistencies in the victim's testimony, were properly placed before the trier of fact and we find no reason to disturb the court's determination to credit the victim's testimony rather than defendant's testimony.
The court properly denied, both on the ground of untimeliness and on the merits, defendant's request for a missing witness charge relating to the victim's niece, Naomi Pardo. The request was untimely because it could have been made at the outset of trial given the information in defendant's possession, including the victim's Family Court petition indicating that Ms. Pardo was present during the underlying incident, and the People's witness list (see People v. Carr , 14 NY3d 808, 809 [2010] ; People v. Arnold , 48 AD3d 239, 240 [2008], lv denied 10 NY3d 859 [2008] ). In addition, the record supports the court's finding that Pardo's testimony would not have been material, since she did not see the interaction between defendant and the victim. The victim testified that although she was on a Face Time call with Pardo, the latter did not see the altercation because the victim's phone was down.
Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal because it involves matters not reflected in or fully explained by the record (see People v. Baron , 133 AD3d 516, 518 [2015], lv denied 26 NY3d 1142 [2016] ; People v. Polanco , 121 AD3d 436, 437 [2014], lv denied 24 NY3d 1221 [2015] ). Although defendant made a CPL 440.10 motion that was denied, he failed to obtain permission from this Court to appeal, and therefore, "the merits of the ineffectiveness claim are not properly before us" ( People v. Baron , 133 AD3d at 518 ; see also People v. Polanco , 121 AD3d at 437 ). Alternatively, to the extent that the existing record permits review, defendant received effective assistance of counsel.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
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