Opinion
No. 15979 Ind. No. 2125/18 Case No. 2020-00006
05-19-2022
The People of the State of New York, Respondent, v. Anthony Debellis, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Matthew Bova of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Daniel J. Young of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Matthew Bova of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Daniel J. Young of counsel), for respondent.
Before: Manzanet-Daniels, J.P., Gische, Kern, Friedman, Shulman, JJ.
Judgment, Supreme Court, Bronx County (David L. Lewis, J.), rendered October 3, 2019, convicting defendant, after a jury trial, of criminal possession of a weapon in the second and third degrees and criminal possession of a firearm, and sentencing him to an aggregate term of seven years, unanimously affirmed.
Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record (see People v Rivera, 71 N.Y.2d 705, 709 [1988]; People v Love, 57 N.Y.2d 998 [1982]). Accordingly, because defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant was not deprived of effective assistance (see People v Benevento, 91 N.Y.2d 708, 713-14 [1998]; Strickland v Washington, 466 U.S. 668 [1984]) as the result of his counsel's failure to request a jury instruction on the exemption from firearms possession laws for a person who voluntarily surrenders a weapon to the police (Penal Law § 265.20[a][1][f]). There was no reasonable view of the evidence that defendant's conduct satisfied the requirements of that statute, and as a result counsel's failure to request such an instruction did not constitute ineffective assistance (see People v Caban, 5 N.Y.3d 143, 152 [2005]). In any event, even if counsel should have made that request, defendant has not demonstrated prejudice, because there is no reasonable possibility that the outcome of the trial would have been different. Defendant's actions and statements before and during his arrest, including denying having a weapon, were utterly incompatible with his incredible testimony that he happened to be stopped by the police while driving to a police station to surrender his pistol as part of a buyback program.
Defense counsel did not create a conflict of interest with respect to defendant's pro se motion to set aside the verdict by making a brief and conclusory remark that he believed that he had provided effective assistance. Counsel never went beyond "defending his performance" (People v Washington, 25 N.Y.3d 1091, 1095 [2015]). "Furthermore, through its own familiarity with the case, the court readily recognized the motion's lack of merit, independently of anything said by counsel" (People v Torres, 159 A.D.3d 473 [1st Dept 2018], lv denied 31 N.Y.3d 1088 [2018]).
We perceive no basis for reducing the sentence.