Opinion
10-19-2017
The PEOPLE of the State of New York, Respondent, v. Sammy SAMPSON, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (David Bernstein of Counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Emily A. Aldridge of Counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (David Bernstein of Counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Emily A. Aldridge of Counsel), for respondent.
Defendant's arguments concerning the sufficiency and weight of the evidence, in which he highlights discrepancies in the victim's account of the crime, and defendant's challenge to the admissibility of an alleged prior consistent statement, are substantially similar to arguments this Court rejected on a codefendant's appeal ( People v. Coney, 146 A.D.3d 429, 45 N.Y.S.3d 36 [1st Dept.2017] ). We find no significant difference in the evidence against the two defendants, and no reason to reach a different result on this defendant's appeal.
Defendant did not preserve his claim that the court failed to respond to a jury note requesting the readback of testimony (see People v. Mack, 27 N.Y.3d 534, 36 N.Y.S.3d 68, 55 N.E.3d 1041 [2016] ), and we decline to review in the interest of justice. As an alternative holding, we find that, after the court advised the jury that it would begin the process of arranging for the readback, the jury instead reached a verdict, and thus "[b]y promptly reaching a verdict without any further inquiry, the jury implicitly indicated that it no longer needed the information requested" ( People v. Cornado, 60 A.D.3d 450, 451, 874 N.Y.S.2d 463 [1st Dept.2009], lv. denied 12 N.Y.3d 913, 884 N.Y.S.2d 694, 912 N.E.2d 1075 [2009] ; see also People v. Fuentes, 246 A.D.2d 474, 475, 668 N.Y.S.2d 184 [1st Dept.1998], lv. denied 91 N.Y.2d 941, 671 N.Y.S.2d 721, 694 N.E.2d 890 [1998] ).
Defendant's claim that his trial counsel rendered ineffective assistance by failing to object to the court's taking of the verdict without providing the readback is unreviewable on direct appeal because it involves matters of strategy not reflected in, or fully explained by, the record (see 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 this ineffectiveness claim 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] ).
ACOSTA, P.J., FRIEDMAN, WEBBER, OING, and MOULTON, JJ., concur.