Opinion
2018–08650 Ind. No. 386/17
11-25-2020
The PEOPLE, etc., respondent, v. William MCCOY, appellant.
Michael A. Ciaffa, Uniondale, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Sarah S. Rabinowitz and John B. Latella of counsel), for respondent.
Michael A. Ciaffa, Uniondale, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Sarah S. Rabinowitz and John B. Latella of counsel), for respondent.
WILLIAM F. MASTRO, J.P., HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Helene F. Gugerty, J.), rendered June 29, 2018, convicting him of grand larceny in the second degree and scheme to defraud in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence supporting his convictions is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to support the defendant's conviction of grand larceny in the second degree (see Penal Law § 155.40[1] ; People v. Brown, 107 A.D.3d 1145, 1146, 967 N.Y.S.2d 206 ) and scheme to defraud in the first degree (see Penal Law § 190.65[1][b] ; People v. Morse, 111 A.D.3d 569, 570, 975 N.Y.S.2d 406 ) beyond a reasonable doubt. Contrary to the defendant's contention, the evidence adduced at trial was sufficient to prove beyond a reasonable doubt that the property at issue was not appropriated under a claim of right made in good faith (see generally Penal Law § 155.15[1] ; People v. Zona, 14 N.Y.3d 488, 492–493, 902 N.Y.S.2d 844, 928 N.E.2d 1041 ). 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, 348, 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, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ). 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, 644, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that he was denied 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 Supreme Court properly denied, without a hearing, the defendant's motion pursuant to CPL 330.30 to set aside the verdict based on a claim of ineffective assistance of counsel (see CPL 330.30[1] ; 330.40[2]; People v. Freire, 168 A.D.3d 973, 975, 92 N.Y.S.3d 115 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
MASTRO, J.P., LASALLE, CONNOLLY and WOOTEN, JJ., concur.