Opinion
04-25-2017
The PEOPLE of the State of New York, Respondent, v. Antoine LEWIS, Defendant–Appellant.
Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant. Antoine Lewis, appellant pro se. Darcel D. Clark, District Attorney, Bronx (Jordan K. Hummel of counsel), for respondent.
Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant.
Antoine Lewis, appellant pro se.Darcel D. Clark, District Attorney, Bronx (Jordan K. Hummel of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered February 17, 2012, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 22 years to life, 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 permissible rhetoric that fairly commented on the evidence and responded to defense arguments, that to the extent there were any improprieties they were not so egregious as to compel reversal, and that the summation did not 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, 118–119, 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 are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, 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] ). Furthermore, we do not find that any lack of preservation may be excused on the ground of ineffective assistance.
Defendant's pro se claim regarding a material witness proceeding, and his pro se Confrontation Clause claim are waived or unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits.
We perceive no basis for reducing the sentence.
FRIEDMAN, J.P., RICHTER, FEINMAN, GISCHE, GESMER, JJ., concur.