Opinion
2014–09703 Ind. No. 1521/13
03-30-2022
The PEOPLE, etc., respondent, v. Jonathan MACK, appellant.
Stacey Eves, Long Beach, NY, for appellant, and appellant pro se. Anne T. Donnelly, District Attorney, Mineola, NY (Kevin C. King and Donald Berk of counsel), for respondent.
Stacey Eves, Long Beach, NY, for appellant, and appellant pro se.
Anne T. Donnelly, District Attorney, Mineola, NY (Kevin C. King and Donald Berk of counsel), for respondent.
BETSY BARROS, J.P., REINALDO E. RIVERA, PAUL WOOTEN, WILLIAM G. FORD, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (George R. Peck, J.), rendered October 8, 2014, convicting him of murder in the second degree and criminal possession of a weapon in the second degree (two counts), after a nonjury trial, and imposing sentence.
ORDERED that the judgment is affirmed.
The Supreme Court properly precluded the defendant from introducing purported prior inconsistent statements by a prosecution witness, because by failing to confront that witness with the statements and asking her whether she made them, the defendant failed to lay a proper foundation for their admission (compare People v. Oliver, 193 A.D.3d 1081, 1082–1083, 146 N.Y.S.3d 666, and People v. Robertson, 172 A.D.3d 1239, 1239–1240, 98 N.Y.S.3d 866, with People v. Collins, 145 A.D.3d 1479, 1480, 44 N.Y.S.3d 830 ). To the extent that the defendant is arguing that he was deprived of his right to present a defense, such claim is unpreserved for appellate review (see CPL 470.05[2] ; People v. Bush, 184 A.D.3d 1003, 126 N.Y.S.3d 570 ; People v. Connelly, 32 A.D.3d 863, 863, 821 N.Y.S.2d 614 ), and we decline to review it in the exercise of our interest of justice jurisdiction.
Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel by his attorney's failure to lay a proper foundation for the admission of prior inconsistent statements (see People v. Henry, 297 A.D.2d 585, 586, 748 N.Y.S.2d 2 ; People v. Newton, 138 A.D.2d 415, 416, 525 N.Y.S.2d 699 ).
The defendant's remaining contentions, raised in his pro se supplemental brief, are based on matter dehors the record, and therefore, cannot be addressed on direct appeal (see People v. King , 144 A.D.3d 1176, 1177, 41 N.Y.S.3d 751 ).
BARROS, J.P., RIVERA, WOOTEN and FORD, JJ., concur.