Opinion
04-03-2024
The PEOPLE, etc., respondent, v. Errol IRVING, appellant.
Patricia Pazner, New York, NY (Joshua M. Levine of counsel), for appellant, and appellant pro se. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Julian Joiris of counsel), for respondent.
Patricia Pazner, New York, NY (Joshua M. Levine of counsel), for appellant, and appellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Julian Joiris of counsel), for respondent.
BETSY BARROS, J.P., CHERYL E. CHAMBERS, DEBORAH A. DOWLING, BARRY E. WARHIT, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Bruce M. Balter, J.), rendered July 12, 2017, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
[1] The defendant’s contention that the evidence was legally insufficient to disprove his justification defense is unpreserved for appellate review (see CPL 470.05[2]; People v. Finger, 95 N.Y.2d 894, 895, 716 N.Y.S.2d 34, 739 N.E.2d 290) and, in any event, without merit. 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 disprove the defendant’s justification defense beyond a reasonable doubt (Penal Law § 35.15; see People v. Hernandez, 207 A.D.3d 749, 749, 170 N.Y.S.3d 907; People v. O’Brien, 270 A.D.2d 433, 433-434, 705 N.Y.S.2d 258). 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 883, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053). Upon reviewing the record here, we are satisfied that the jury’s rejection of the defendant’s justification defense and the verdict of guilt were 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).
[2, 3] As the defendant either did not object to the summation remarks at issue, made only a general objection, or failed to request further curative relief or make a timely motion for a mistrial on the specific grounds now asserted on appeal, his contention, raised in his pro se supplemental brief, that the prosecutor's summation remarks deprived him of a fair trial is unpreserved for appellate review (see CPL 470.05[2]; People v. Ambers, 115 A.D.3d 671, 672, 981 N.Y.S.2d 554). In any event, the prosecutor’s summation remarks were either fair comment on the evidence or responsive to defense counsel’s summation (see People v. Holm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281; People v. Askwal, 89 N.Y.2d 105, 109-110, 383 N.Y.S.2d 204, 347 N.E.2d 564; People v. Smith, 187 A.D.3d 1652, 1655, 132 N.Y.S.3d 498; People v. Howard, 120 A.D.3d 1259, 1260, 992 N.Y.S.2d 144). Moreover, the prosecutor’s remarks regarding the defendant’s credibility were proper, since the issue of credibility was central to the trial (see People v. Morrow, 143 A.D.3d 919, 921, 39 N.Y.S.3d 232).
[4] The defendant’s contention, raised in his pro se supplemental brief, that the Supreme Court deprived him of a fair trial by failing to provide the jury with a proper charge on the defense of justification is unpreserved for appellate review, since the defendant failed to request the inclusion of particular, additional language and did not object to the charge as given (see CPL 470.05[2]; People v. Stewart, 71 A.D.3d 797, 798, 900 N.Y.S.2d 60; People v. Soto, 31 A.D.3d 793, 793, 818 N.Y.S.2d 487). In any event, the contention is without merit, since the court fairly and accurately described the applicable law (see People v. Edwards, 160 A.D.3d 658, 658-659, 73 N.Y.S.3d 602).
[5] The defendant’s contention, raised in 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). 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, and we decline to review the claim on this direct appeal (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), and there is no evidence that the Supreme Court retaliated against the defendant for exercising his right to trial (see People v. Hernandez, 88 A.D.3d 907, 931 N.Y.S.2d 518).
The remaining contentions raised in the defendant’s pro se supplemental brief are without merit.
BARROS, J.P., CHAMBERS, DOWLING and WARHIT, JJ., concur.