Opinion
2012-06953, Ind. No. 1601/11.
04-01-2015
The PEOPLE, etc., respondent, v. Allah JUSTICE, appellant.
Marianne Karas, Thornwood, N.Y., for appellant. Madeline Singas, Acting District Attorney, Mineola, N.Y. (Tammy J. Smiley, Robert A. Schwartz, Ezra E. Zonana, and Joseph Mogelnicki of counsel), for respondent.
Marianne Karas, Thornwood, N.Y., for appellant.
Madeline Singas, Acting District Attorney, Mineola, N.Y. (Tammy J. Smiley, Robert A. Schwartz, Ezra E. Zonana, and Joseph Mogelnicki of counsel), for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robbins, J.), rendered December 11, 2012, convicting him of assault in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions (Berkowitz, J.), of the suppression of identification testimony.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the complaining witness's viewing of a surveillance video of the assault did not constitute an identification procedure (see People v. Gee, 99 N.Y.2d 158, 162, 753 N.Y.S.2d 19, 782 N.E.2d 1155 ).
The defendant's contention that the evidence was legally insufficient to support his convictions of assault in the second degree and criminal possession of a weapon in the third degree is unpreserved for appellate review (see People v. Delgado, 109 A.D.3d 483, 970 N.Y.S.2d 84 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of those crimes 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, 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 ). Upon reviewing the record here, 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 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, 933 N.Y.S.2d 386 ; see People v. Taylor, 98 A.D.3d 593, 594, 949 N.Y.S.2d 209, affd. sub nom. People v. Heidgen, 22 N.Y.3d 259, 980 N.Y.S.2d 320, 3 N.E.3d 657 ). 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 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. Taylor, 98 A.D.3d at 594, 949 N.Y.S.2d 209 ; People v. Delancey, 94 A.D.3d 1015, 942 N.Y.S.2d 170 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.