Opinion
2014–01605 Ind. No. 774/11
09-19-2018
The PEOPLE, etc., respondent, v. Andre DICKENSON, appellant.
Judah Maltz, Kew Gardens, NY, for appellant, and appellant pro se. Madeline Singas, District Attorney, Mineola, N.Y. (Judith R. Sternberg, Joseph Mogelnicki, Daniel Bresnahan, and John B. Latella of counsel), for respondent.
Judah Maltz, Kew Gardens, NY, for appellant, and appellant pro se.
Madeline Singas, District Attorney, Mineola, N.Y. (Judith R. Sternberg, Joseph Mogelnicki, Daniel Bresnahan, and John B. Latella of counsel), for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
ORDERED that the judgment, as amended, 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 (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). 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, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the factfinder'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 ; People v. Bleakley, 69 N.Y.2d at 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, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention, raised in his main brief and 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 ; see People v. Evans, 16 N.Y.3d 571, 575 n 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ; People v. Rosado, 134 A.D.3d 1133, 1134–1135, 22 N.Y.S.3d 235 ). 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 (see People v. Rosado, 134 A.D.3d at 1134–1135, 22 N.Y.S.3d 235 ; People v. Fabers, 133 A.D.3d 616, 617–618, 20 N.Y.S.3d 89 ). 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. Guzman, 138 A.D.3d 1140, 1141, 31 N.Y.S.3d 146 ; People v. Renaud, 137 A.D.3d 818, 820–821, 27 N.Y.S.3d 578 ; People v. Duren, 130 A.D.3d 842, 843, 13 N.Y.S.3d 512 ).
DILLON, J.P., LEVENTHAL, ROMAN and DUFFY, JJ., concur.