Opinion
2013–06145 Ind.No. 8960/11
05-22-2019
The PEOPLE, etc., Respondent, v. Jonathan MENA, Appellant.
Paul Skip Laisure, New York, N.Y. (Dina Zloczower of counsel), for appellant, and appellant pro se. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee, and Denise Pavlides of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Dina Zloczower of counsel), for appellant, and appellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee, and Denise Pavlides of counsel), for respondent.
RUTH C. BALKIN, J.P., SHERI S. ROMAN, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.
DECISION & ORDERORDERED that the judgment is affirmed.
The defendant's contention that certain remarks made by the prosecutor during summation were improper is, for the most part, unpreserved for appellate review (see CPL 470.05[2] ; People v. Wilson , 163 A.D.3d 881, 882, 81 N.Y.S.3d 163 ; People v. Rogers , 161 A.D.3d 1013, 1015, 77 N.Y.S.3d 431 ). In any event, many of the other challenged summation remarks were within the bounds of permissible rhetorical comment, a fair response to statements made by defense counsel, or fair comment on the reasonable inferences to be drawn from the evidence (see People v. Rogers , 161 A.D.3d at 1014, 77 N.Y.S.3d 431 ; People v. Blue , 136 A.D.3d 840, 24 N.Y.S.3d 532 ). To the extent that some of the challenged remarks were improper, they were not so flagrant or pervasive as to have deprived the defendant of a fair trial (see People v. Coleman , 148 A.D.3d 717, 718, 48 N.Y.S.3d 478 ; People v. Almonte , 23 A.D.3d 392, 394, 806 N.Y.S.2d 95 ).
The defendant's contentions, including those raised in his pro se supplemental brief, that he was deprived of the effective assistance of counsel are based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitute 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 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). 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, and we decline to review the claim on this direct appeal (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 ).
The defendant's contention in his pro se supplemental brief that he was deprived of a fair trial because the prosecutor failed to correct false testimony by prosecution witnesses is based in part on matter outside the record and cannot be reached on direct appeal (see People v. King , 161 A.D.3d 772, 775, 77 N.Y.S.3d 70 ; People v. Martinez , 287 A.D.2d 353, 354, 731 N.Y.S.2d 183 ).
Contrary to the defendant's argument raised in his pro se supplemental brief, the People established that the police had reasonable suspicion to detain the defendant and that the reasonable suspicion ripened into probable cause to place him under arrest (see People v. Lawson , 163 A.D.3d 996, 998–999, 82 N.Y.S.3d 568 ; People v. Cotsifas , 100 A.D.3d 1015, 1015, 954 N.Y.S.2d 219 ).
The defendant's remaining contentions raised in his pro se supplemental brief are without merit.
BALKIN, J.P., ROMAN, MILLER and CHRISTOPHER, JJ., concur.