Opinion
11793 Ind. 3520/16
07-09-2020
The PEOPLE of the State of New York, Respondent, v. Fomdo DRAME, Defendant–Appellant.
Michael D. Horn, Astoria, for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), for respondent.
Michael D. Horn, Astoria, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), for respondent.
Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.
Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered March 15, 2018, convicting defendant, after a jury trial, of rape in the first degree and sexual assault in the first degree and sentencing him to an aggregate term of 15 years, unanimously affirmed.
Defendant's challenges to the People's summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find that the challenged remarks generally constituted fair comments on the evidence along with reasonable inferences to be drawn therefrom. These comments were responsive to defense arguments, and the summation did not shift the burden of proof or deprive defendant of a fair trial (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ; People v. D'Alessandro, 184 A.D.2d 114, 118–120, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).
Defendant's ineffective assistance of counsel claims based on his trial counsel's failure to object to the challenged portions of the prosecutor's summation 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 A.D.3d 620, 33 N.Y.S.3d 32 [1st Dept. 2016], lv denied 28 N.Y.3d 973, 43 N.Y.S.3d 261, 66 N.E.3d 7 [2016] ; People v. Almonte, 90 A.D.3d 579, 580, 935 N.Y.S.2d 293 [1st Dept. 2011] lv denied 19 N.Y.3d 956, 950 N.Y.S.2d 108, 973 N.E.2d 206 [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 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [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.