Opinion
2022-02275 Ind. 1612/17
04-06-2022
The People of the State of New York, respondent, v. Silvestre Campa, appellant.
Patricia Pazner, New York, NY (Samuel Barr of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, William H. Branigan, and Katherine A. Triffon of counsel), for respondent.
Patricia Pazner, New York, NY (Samuel Barr of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, William H. Branigan, and Katherine A. Triffon of counsel), for respondent.
COLLEEN D. DUFFY, J.P. CHERYL E. CHAMBERS SHERI S. ROMAN LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Barry A. Schwartz, J.), rendered October 3, 2018, convicting him of predatory sexual assault, sexual abuse in the first degree, and unlawful imprisonment in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant failed to preserve for appellate review his challenge to the legal sufficiency of the evidence supporting his convictions (see CPL 470.05[2]). In any event, 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 beyond a reasonable doubt. 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; People v Bleakley, 69 N.Y.2d 490, 495). 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).
The defendant's contention that the Supreme Court erred in failing to give a circumstantial evidence charge is unpreserved for appellate review (see CPL 470.05[2]). In any event, because the evidence supporting the defendant's guilt was not wholly circumstantial, no circumstantial evidence charge was required (see People v Johnson, 270 A.D.2d 431, 432).
The defendant contends that he was deprived of the effective assistance of counsel due to, inter alia, his attorney's failure to move to suppress certain DNA evidence on the ground that the DNA results were obtained in violation of Executive Law § 995-d. Although the absence of such a motion is apparent on the face of the record, the defendant's ineffective assistance claim depends, in part, upon matter outside the record, including the scope of the DNA consent form which the defendant signed during the course of an unrelated criminal investigation. This evidence will bear on the issue of whether the defendant's attorney had a "strategic or other legitimate explanation[ ]" for his allegedly deficient conduct (People v Rivera, 71 N.Y.2d 705, 709; see People v Taylor, 98 A.D.3d 593, 594, affd 22 N.Y.3d 259). Since the defendant's claim of ineffective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, he has presented a "'mixed claim[ ]' of ineffective assistance" (People v Maxwell, 89 A.D.3d 1108, 1109, quoting People v Evans 16 N.Y.3d 571, 572 n 2). 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, and we decline to review the claim on this direct appeal (see People v Freeman, 93 A.D.3d 805, 806; People v Maxwell, 89 A.D.3d at 1109; People v Rohlehr, 87 A.D.3d 603, 604).
The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).
DUFFY, J.P., CHAMBERS, ROMAN and CHRISTOPHER, JJ., concur.