Opinion
2014-02-25
The PEOPLE of the State of New York, Respondent, v. Kevin O. HAMILTON, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), and DLA Piper LLP, New York (Robert J. Czarnecki Jr., of counsel), for appellant. Kevin O. Hamilton, appellant pro se.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), and DLA Piper LLP, New York (Robert J. Czarnecki Jr., of counsel), for appellant. Kevin O. Hamilton, appellant pro se.
Cyrus R. Vance, Jr., District Attorney, New York (Grace Vee of counsel), for respondent.
SWEENY, J.P., ANDRIAS, MOSKOWITZ, DeGRASSE, GISCHE, JJ.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered August 24, 2010, convicting defendant, after a jury trial, of two counts of robbery in the second degree, and sentencing him, as a second violent felony offender, to concurrent terms of eight years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). The course of conduct of defendant and his companion demonstrated that defendant was “aided by another person actually present” (Penal Law § 160.10[1] ) who acted, at least, as a lookout during the robbery. The evidence also established the element of physical injury ( seePenal Law §§ 10.00[9]; 160.10[2][a] ), in that the victim's injuries were more than mere “petty slaps, shoves, kicks and the like” (Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358 [1980] ), and clearly caused “more than slight or trivial pain” ( People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007];see also People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994] ).
Defendant's pro se ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters outside the record ( see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988]; People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ). 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] ).