Opinion
2014-06-25
The PEOPLE, etc., respondent, v. Shawn BOYCE, appellant.
Edward M. Gould, Islip, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel), for respondent.
Edward M. Gould, Islip, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel), for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Efman, J.), rendered April 19, 2010, convicting him of rape in the third degree and forcible touching, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's claim that the People violated their disclosure obligations pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 relies on factual assertions outside of the record and, thus, is not reviewable on direct appeal ( see People v. Krivoi, 81 A.D.3d 978, 979, 917 N.Y.S.2d 273;People v. Helenese, 75 A.D.3d 653, 907 N.Y.S.2d 223;People v. Valdes, 66 A.D.3d 925, 886 N.Y.S.2d 623;People v. Reyes, 60 A.D.3d 873, 875 N.Y.S.2d 229).
In addition, to the extent that the defendant contends that he was deprived of the effective assistance of counsel because his attorney rejected his request to testify on his own behalf, his contention is based on matter dehors the record and is not reviewable on direct appeal ( see People v. Washington, 71 A.D.3d 1064, 1065, 896 N.Y.S.2d 874;People v. Krebs, 11 A.D.3d 713, 784 N.Y.S.2d 564;People v. Pozo, 285 A.D.2d 520, 727 N.Y.S.2d 646;People v. Bennett, 284 A.D.2d 338, 725 N.Y.S.2d 575;People v. Santana, 279 A.D.2d 641, 719 N.Y.S.2d 879).
The defendant's contention that the prosecutor struck a juror on racially discriminatory grounds is unpreserved for appellate review ( see People v. Ross, 83 A.D.3d 741, 742, 919 N.Y.S.2d 526;People v. Lemay, 69 A.D.3d 757, 758, 894 N.Y.S.2d 63) and, in any event, is without merit ( see People v. Ortiz, 61 A.D.3d 706, 875 N.Y.S.2d 909;People v. Quito, 43 A.D.3d 411, 412, 840 N.Y.S.2d 622).
The defendant also failed to raise a timely challenge to the seating of Juror No. 5 when the juror disclosed during voir dire that she had sued her boss for sexual harassment ( seeCPL 270.20[1][c] ). Therefore, to the extent that the defendant's claim of juror bias arises out of matter appearing on the record, he waived such objection ( seeCPL 270.15[4]; People v. Ames, 96 A.D.3d 867, 946 N.Y.S.2d 246;People v. Sellers, 295 A.D.2d 629, 744 N.Y.S.2d 870;People ex rel. Green v. La Vallee, 55 A.D.2d 958, 391 N.Y.S.2d 161). To the extent that the defendant's claim is based on matter dehors the record, it is not reviewable on direct appeal ( seeCPL 440.10; People v. Kirk, 96 A.D.3d 1354, 1359, 945 N.Y.S.2d 818;People v. Kaplan, 223 A.D.2d 364, 636 N.Y.S.2d 306).
The defendant's contention that the Supreme Court unfairly marshaled the evidence in its jury charge is unpreserved for appellate review ( see People v. Lawson, 22 A.D.3d 602, 801 N.Y.S.2d 754) and, in any event, is without merit ( see People v. McManus, 208 A.D.2d 866, 617 N.Y.S.2d 851;cf. People v. Chambers, 73 A.D.2d 976, 424 N.Y.S.2d 241).