Opinion
2021-03465 Ind. 58598/17
06-02-2021
The People of the State of New York, respondent, v. Robert Aimetti, appellant.
Robert Aimetti, Brooklyn, NY, appellant pro se. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Jean M. Joyce, and Jason Eldridge of counsel), for respondent.
Robert Aimetti, Brooklyn, NY, appellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Jean M. Joyce, and Jason Eldridge of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthew Sciarrino, Jr., J.), rendered, convicting him of assault in the third degree, menacing in the third degree (two counts), harassment in the second degree, and criminal contempt in the second degree (four counts), 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]; People v Hawkins, 11 N.Y.3d 484, 492). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620, 621), 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, 348-349), 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 claim of ineffective 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; see People v Evans, 16 N.Y.3d 571, 575 n 2). 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 Maffei, 35 N.Y.3d 264, 269-270; People v Martinez-Galdamez, ___ A.D.3d ___, 2021 NY Slip Op 02178 [2d Dept]; People v Maxwell, 89 A.D.3d at 1109).
The defendant's remaining contention is without merit.
DILLON, J.P., CHAMBERS, AUSTIN and DUFFY, JJ., concur.