Opinion
2019-12344 Ind. 367/18
08-04-2021
The People, etc., respondent, v. Tylil B. McTootle, appellant.
Leon H. Tracy, Jericho, NY, for appellant. Joyce A. Smith, Acting District Attorney, Mineola, NY (Rebecca L. Abensur and Autumn S. Hughes of counsel), for respondent.
Argued - June 17, 2021
D67096 G/afa
Leon H. Tracy, Jericho, NY, for appellant.
Joyce A. Smith, Acting District Attorney, Mineola, NY (Rebecca L. Abensur and Autumn S. Hughes of counsel), for respondent.
WILLIAM F. MASTRO, J.P. COLLEEN D. DUFFY VALERIE BRATHWAITE NELSON DEBORAH A. DOWLING, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Howard Sturim, J.), rendered August 20, 2019, convicting him of criminal possession of a controlled substance in the third degree, criminal use of drug paraphernalia in the second degree, and criminal possession of marihuana in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that his convictions are not supported by legally sufficient evidence is only partially preserved for appellate review (see CPL 470.05[2]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. 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), 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; People v Bleakley, 69 N.Y.2d 490, 495). 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).
The defendant's contention 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; see People v Freeman, 93 A.D.3d 805, 806). 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 at 806; People v Maxwell, 89 A.D.3d at 1109).
MASTRO, J.P., DUFFY, BRATHWAITE NELSON and DOWLING, JJ., concur.