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People v. Browder

Supreme Court, Appellate Division, Second Department, New York.
Apr 1, 2015
127 A.D.3d 777 (N.Y. App. Div. 2015)

Opinion

2015-04-01

The PEOPLE, etc., respondent, v. Akeem BROWDER, appellant.

Lynn W.L. Fahey, New York, N.Y. (Dina Zloczower of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ann Bordley, and Jill Oziemblewski of counsel), for respondent.


Lynn W.L. Fahey, New York, N.Y. (Dina Zloczower of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ann Bordley, and Jill Oziemblewski of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered April 26, 2012, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), 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 ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the opportunity of the finder of fact 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; 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 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 contention 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; see People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457). 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, 825, 440 N.Y.S.2d 170, 422 N.E.2d 815; People v. Brown, 45 N.Y.2d 852, 853–854, 410 N.Y.S.2d 287, 382 N.E.2d 1149). 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 ( see 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).

The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

RIVERA, J.P., CHAMBERS, MILLER and DUFFY, JJ., concur.


Summaries of

People v. Browder

Supreme Court, Appellate Division, Second Department, New York.
Apr 1, 2015
127 A.D.3d 777 (N.Y. App. Div. 2015)
Case details for

People v. Browder

Case Details

Full title:The PEOPLE, etc., respondent, v. Akeem BROWDER, appellant.

Court:Supreme Court, Appellate Division, Second Department, New York.

Date published: Apr 1, 2015

Citations

127 A.D.3d 777 (N.Y. App. Div. 2015)
127 A.D.3d 777
2015 N.Y. Slip Op. 2778