Opinion
10-19-2016
The PEOPLE, etc., respondent, v. Ikee HALE, appellant.
Lynn W.L. Fahey, New York, NY (David P. Greenberg of counsel), for appellant, and appellant pro se. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley, and Michael L. Brenner of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (David P. Greenberg of counsel), for appellant, and appellant pro se.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley, and Michael L. Brenner of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE and BETSY BARROS, JJ.
ORDERED that the judgment is affirmed.
The Supreme Court providently exercised its discretion in permitting the prosecution to make an ex parte motion for a protective order so as to delay the disclosure of the identity of certain witnesses (see CPL 240.50 ; 240.90[3]; People v. Pilgrim, 101 A.D.3d 435, 435–436, 954 N.Y.S.2d 536 ; People v. Robinson, 200 A.D.2d 693, 694, 606 N.Y.S.2d 908 ; cf. People v. Frost, 100 N.Y.2d 129, 134–135, 760 N.Y.S.2d 753, 790 N.E.2d 1182 ). Further, the court properly determined that the prosecution did not commit a Brady violation (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 ), by failing to timely disclose the identity of one of its witnesses who was the subject of the protective order, as there was no reasonable possibility that such nondisclosure affected the outcome of the trial (see People v. Fuentes, 12 N.Y.3d 259, 263, 879 N.Y.S.2d 373, 907 N.E.2d 286 ; People v. Graves, 62 A.D.3d 900, 901, 878 N.Y.S.2d 630 ).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence, as requested by the defendant in Point II of his pro se supplemental brief (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), 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, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record, 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, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention in Point I of his pro se supplemental brief, 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 ; see People v. Evans, 16 N.Y.3d 571, 575, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). 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 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 (see People v. Freeman, 93 A.D.3d 805, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions, including the remaining contentions raised in his pro se supplemental brief, are without merit.