Opinion
2013-10-30
The PEOPLE, etc., respondent, v. Larry BARTON, appellant.
Lynn W. L. Fahey, New York, N.Y. (Denise A. Corsí of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Merri Turk Lasky of counsel), for respondent.
Lynn W. L. Fahey, New York, N.Y. (Denise A. Corsí of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Merri Turk Lasky of counsel), for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered October 16, 2009, convicting him of attempted aggravated murder (three counts), assault in the second degree (three counts), criminal possession of a weapon in the third degree, and criminal possession of stolen property in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support his convictions of three counts of attempted aggravated murder and three counts of assault in the second degree is unpreserved for appellate review ( seeCPL 470.05; People v. Hawkins, 11 N.Y.3d 484, 491–492, 872 N.Y.S.2d 395, 900 N.E.2d 946). 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 as to these crimes beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 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, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt as to these crimes 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 challenge to the Supreme Court's Sandoval ruling ( see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) is only partially preserved for appellate review ( seeCPL 470.05[2] ). In any event, the court providently exercised its discretion in fashioning its Sandoval ruling. The court struck an appropriate balance between the probative value of the defendant's prior crimes on the issue of his credibility and the potential prejudice to the defendant ( see People v. Williams, 56 N.Y.2d 236, 238–239, 451 N.Y.S.2d 690, 436 N.E.2d 1292;People v. Thompson, 99 A.D.3d 819, 819, 951 N.Y.S.2d 754;People v. Ortiz, 95 A.D.3d 1140, 1141, 944 N.Y.S.2d 628). The mere fact that some of the prior convictions were similar in nature to the crimes charged did not warrant their preclusion ( see People v. Smith, 18 N.Y.3d 588, 594, 942 N.Y.S.2d 5, 965 N.E.2d 232;People v. Hayes, 97 N.Y.2d 203, 208, 738 N.Y.S.2d 663, 764 N.E.2d 963;People v. Thompson, 99 A.D.3d at 819, 951 N.Y.S.2d 754).
The defendant's contention that he was deprived of a fair trial by various remarks made by the prosecutor during summation is unpreserved for appellate review, as the defendant either made no objection, or made only a general objection, or made an objection for the first time in his postsummations motion for a mistrial, or made objections that were sustained without any further request for curative instructions and were not the basis of his motion for a mistrial ( seeCPL 470.05[2]; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89;People v. Hanson, 100 A.D.3d 771, 772, 953 N.Y.S.2d 684;People v. Read, 97 A.D.3d 702, 703, 947 N.Y.S.2d 614;People v. Parker–Davidson, 89 A.D.3d 1114, 933 N.Y.S.2d 603). In any event, most of the challenged remarks were proper because they were within the broad bounds of rhetorical comment permissible in closing arguments, constituted a fair response to arguments made by defense counsel in summation, or constituted fair comment on the evidence ( see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885;People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564;People v. Hanson, 100 A.D.3d at 772, 953 N.Y.S.2d 684). To the extent that some of the comments were improper, they were sufficiently addressed by the Supreme Court's instructions to the jury ( see People v. Hines, 102 A.D.3d 889, 890, 958 N.Y.S.2d 724;People v. Evans, 291 A.D.2d 569, 569, 738 N.Y.S.2d 244;People v. Brown, 272 A.D.2d 338, 339, 708 N.Y.S.2d 302), or were harmless in light of the overwhelming evidence of the defendant's guilt and since there was no significant probability that the errors might have contributed to the defendant's convictions ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787;People v. Hanson, 100 A.D.3d at 772, 953 N.Y.S.2d 684).
Since the defendant's guilt was proven beyond a reasonable doubt at trial, there can be no appellate review of the defendant's claim, raised in his pro se supplemental brief, that the evidence presented to the grand jury was legally insufficient ( seeCPL 210.30[6]; People v. Bajana, 82 A.D.3d 1111, 1112, 919 N.Y.S.2d 194;People v. Folkes, 43 A.D.3d 956, 957, 841 N.Y.S.2d 365).
The defendant's contention, raised in his pro se supplemental brief, that all of the identification testimony of the prosecution's witnesses should have been precluded due to the People's failure to serve notice pursuant to CPL 710.30 is only partially preserved for appellate review ( seeCPL 470.05[2] ) and, in any event, is without merit ( see People v. Gissendanner, 48 N.Y.2d 543, 552, 423 N.Y.S.2d 893, 399 N.E.2d 924;People v. Williams, 81 A.D.3d 861, 862, 916 N.Y.S.2d 825;People v. Alvarenga, 25 A.D.3d 560, 561, 806 N.Y.S.2d 416;People v. Southerland, 288 A.D.2d 497, 497–498, 733 N.Y.S.2d 882;People v. Bello, 219 A.D.2d 657, 658, 631 N.Y.S.2d 714).
The defendant's claim, raised in his pro se supplemental brief, 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 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457,cert. denied––– U.S. ––––, 132 S.Ct. 325, 181 L.Ed.2d 201). 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. Thomas, 104 A.D.3d 710, 711, 962 N.Y.S.2d 281;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).
Contrary to the contention raised in the defendant's pro se supplemental brief, the sentence imposed was not illegal.
The defendant's remaining contentions raised in his pro se supplemental brief are unpreserved for appellate review and, in any event, without merit.