Opinion
2014-12-31
The PEOPLE, etc., respondent, v. Robert S. FORNAL, Jr., appellant.
Matthew Muraskin, Port Jefferson, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Cristin N. Connell and Joseph Mogelnicki of counsel), for respondent.
Matthew Muraskin, Port Jefferson, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Cristin N. Connell and Joseph Mogelnicki of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Grella, J.), rendered July 11, 2013, convicting him of burglary in the second degree and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
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 beyond a reasonable doubt the defendant's guilt of burglary in the second degree. 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, 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, 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).
Furthermore, the defendant's claim of ineffective 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. Taylor, 98 A.D.3d 593, 594, 949 N.Y.S.2d 209, affd. sub nom. People v. Heidgen, 22 N.Y.3d 259, 980 N.Y.S.2d 320, 3 N.E.3d 657). 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). Because 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 (People v. Taylor, 98 A.D.3d at 594, 949 N.Y.S.2d 209; see People v. Delancey, 94 A.D.3d 1015, 942 N.Y.S.2d 170; 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).
The defendant's remaining contention is without merit. SKELOS, J.P., DICKERSON, AUSTIN and MALTESE, JJ., concur.