Opinion
5956 5957 Ind. 3239N/12
03-13-2018
The PEOPLE of the State of New York, Respondent, v. Yuseiph SIDBERRY, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), for respondent.
Friedman, J.P., Andrias, Singh, Moulton, JJ.
Judgment, Supreme Court, New York County (Melissa C. Jackson, J.), rendered October 31, 2013, as amended August 18, 2016, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of 10 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to a term of 8 years, and otherwise affirmed.
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, including, among other things, counsel's strategy, analysis and pretrial preparations (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] ). The record does not establish defendant's claim that his counsel misunderstood or mishandled defendant's specific agency defense, which was that he acted as both an agent and as a buyer in his own right (see People v. Andujas, 79 N.Y.2d 113, 580 N.Y.S.2d 719, 588 N.E.2d 754 [1992] ). In any event, defendant has not shown that any of counsel's alleged deficiencies fell below an objective standard of reasonableness, or that, viewed individually or collectively, they deprived defendant of a fair trial or affected the outcome of the case.
The court providently exercised its discretion in permitting the People to refute defendant's agency defense by eliciting his prior convictions relating to the sale of drugs, including their underlying facts (see People v. Valentin, 29 N.Y.3d 150, 156, 53 N.Y.S.3d 592, 75 N.E.3d 1153 [2017] ). The probative value of this evidence outweighed the potential for undue prejudice, which the court minimized by means of a limiting instruction (see People v. Massey, 49 A.D.3d 462, 856 N.Y.S.2d 44 [1st Dept. 2008], lv denied 10 N.Y.3d 866, 860 N.Y.S.2d 493, 890 N.E.2d 256 [2008] ). The court's Sandoval ruling, allowing impeachment use of these convictions and another felony conviction, likewise balanced the appropriate factors and was a proper exercise of discretion (see People v. Hayes, 97 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002] ).
Defendant did not preserve his claims that the prosecutor exceeded the scope of the court's rulings on the use of prior convictions, or misused these convictions in summation. Defendant also did not preserve any of his challenges to the court's main and supplemental agency charges. We decline to review any of these claims in the interest of justice. As an alternative holding, we find no basis for reversal.We find the sentence excessive to the extent indicated.