Opinion
570004/17
04-16-2021
The PEOPLE of the State of New York, Respondent, v. Julio AVILES, Defendant-Appellant.
Per Curiam.
Judgment of conviction (Ann E. Scherzer, J.), rendered September 22, 2016, affirmed.
Defendant's claim that the prosecutor's opening and closing statements deprived him of a fair trial is unpreserved, and we decline to review the issue in the interest of justice (see CPL 470.05 [2] ; People v Romero , 7 NY3d 911, 912 [2006] ; People v LaValle , 3 NY3d 88, 116 [2004] ). As an alternative holding, we find that the challenged remarks generally constituted fair comment on the evidence and the inferences to be drawn therefrom, and did not shift the burden of proof or deprive defendant of a fair trial (see People v Galloway , 54 NY2d 396, 400 [1981] ; People v Overlee , 236 AD2d 133, 138-144 [1997], appeal denied 91 NY2d 976 [1998] ). To the extent that the prosecutor may have exceeded the bounds of permissible rhetorical comment, any error was harmless in light of the overwhelming evidence of guilt (see People v Crimmins , 36 NY2d 230, 241-242 [1975] ).
Defendant's ineffective assistance of counsel claims based on his trial counsel's failure to object to the challenged comments are unreviewable on direct appeal because they involve matters outside the record concerning possible strategic explanations for not objecting (see e.g. People v Rios , 139 AD3d 620 [2016], lv denied 28 NY3d 973 [2016] ; People v Almonte , 90 AD3d 579, 580 [2011], lv denied 19 NY3d 956 [2012] ). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v Benevento , 91 NY2d 708, 713-714 [1998] ; see also Strickland v Washington , 466 US 668 [1984] ). Defendant has not shown that the absence of objections fell below an objective standard of reasonableness, or that they deprived defendant of a fair trial or affected the outcome of the case.
All concur.