Opinion
2014-09-17
The PEOPLE, etc., respondent, v. Mikhail MALLAYEV, appellant.
Tehilah H. Berman, Brooklyn, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Robert J. Masters, Brad A. Leventhal, and Donna Aldea of counsel), for respondent.
Tehilah H. Berman, Brooklyn, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Robert J. Masters, Brad A. Leventhal, and Donna Aldea of counsel), for respondent.
THOMAS A. DICKERSON, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hanophy, J.), rendered April 21, 2009, convicting him of murder in the first degree, conspiracy in the second degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the indictment was not jurisdictionally defective ( see People v. Iannone, 45 N.Y.2d 589, 598, 412 N.Y.S.2d 110, 384 N.E.2d 656; People v. Lakomec, 86 A.D.2d 77, 79, 449 N.Y.S.2d 71). In light of our determination with respect to this issue, the defendant's contentions regarding the lack of a valid felony complaint have been rendered academic ( see People v. Smith, 304 A.D.2d 677, 678, 757 N.Y.S.2d 491).
Contrary to the defendant's contention, since he did not demonstrate the necessity for the appointment of an expert in eyewitness identification on his behalf pursuant to County Law § 722–c, the Supreme Court providently exercised its discretion in denying his request to appoint such an expert ( see People v. Wilson, 107 A.D.3d 919, 920, 967 N.Y.S.2d 756; People v. Robinson, 70 A.D.3d 728, 728, 892 N.Y.S.2d 882; People v. Moore, 125 A.D.2d 501, 502, 509 N.Y.S.2d 585). The defendant's contention that the denial of his request deprived him of due process of law is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Bunge, 70 A.D.3d 710, 710–711, 894 N.Y.S.2d 97) and, in any event, without merit ( see People v. Young, 7 N.Y.3d 40, 46, 817 N.Y.S.2d 576, 850 N.E.2d 623; People v. Lee, 96 N.Y.2d 157, 163, 726 N.Y.S.2d 361, 750 N.E.2d 63; People v. Linton, 94 A.D.3d 962, 963, 942 N.Y.S.2d 371; cf. People v. Santiago, 17 N.Y.3d 661, 671–672, 934 N.Y.S.2d 746, 958 N.E.2d 874; People v. Abney, 13 N.Y.3d 251, 268, 889 N.Y.S.2d 890, 918 N.E.2d 486; People v. LeGrand, 8 N.Y.3d 449, 457, 835 N.Y.S.2d 523, 867 N.E.2d 374).
The defendant's contentions that the admission into evidence of certain fingerprint cards violated his constitutional rights to confront witnesses against him and to a fair trial are unpreserved for appellate review ( seeCPL 470.05[2] ) and, in any event, without merit ( see People v. Rawlins, 10 N.Y.3d 136, 158–160, 855 N.Y.S.2d 20, 884 N.E.2d 1019; People v. Jackson, 108 A.D.3d 1079, 1080, 968 N.Y.S.2d 789; People v. Gonsa, 220 A.D.2d 27, 30, 644 N.Y.S.2d 346). The defendant's contention that his fingerprints were illegally seized in violation of the Fourth Amendment to the United States Constitution also is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Jackson, 105 A.D.3d 866, 867–868, 962 N.Y.S.2d 679) and, in any event, not supported by the record.
The defendant's contention that, during summation, the prosecutor impermissibly vouched for certain prosecution witnesses is without merit. The defendant's contention that certain other comments made by the prosecutor during summation deprived him of a fair trial is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Malave, 7 A.D.3d 542, 542, 775 N.Y.S.2d 588) and, in any event, without merit ( see People v. Hutchinson, 106 A.D.3d 1105, 1105, 965 N.Y.S.2d 612; People v. McHarris, 297 A.D.2d 824, 825, 748 N.Y.S.2d 57; People v. Evans, 291 A.D.2d 569, 569, 738 N.Y.S.2d 244; People v. Clark, 222 A.D.2d 446, 447, 634 N.Y.S.2d 714).
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, 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, 806, 940 N.Y.S.2d 314; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386; People v. Rohlehr, 87 A.D.3d 603, 604, 927 N.Y.S.2d 919).
The defendant's contentions that his conviction should be vacated, based upon the People's failure to produce certain evidence for his inspection, that the People destroyed certain latent fingerprints, and that the People violated his due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, by failing to turn over an alleged eyewitness account, are all based upon matter dehors the record, and cannot be reviewed on direct appeal ( see People v. Modesto, 39 A.D.3d 567, 567, 835 N.Y.S.2d 220; People v. Rivera, 33 A.D.3d 942, 942, 826 N.Y.S.2d 299).
The defendant's remaining contentions are without merit.