Opinion
2016–05097 Ind. No. 1701/15
09-18-2019
The PEOPLE, etc., Respondent, v. Alderay SIMMONDS, Appellant.
Paul Skip Laisure, New York, N.Y. (Tammy E. Linn and Anjali Biala of counsel), for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Kayonia L. Whetstone, Kathryn E. Mullen, and Kathryn O'Neill of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Tammy E. Linn and Anjali Biala of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Kayonia L. Whetstone, Kathryn E. Mullen, and Kathryn O'Neill of counsel), for respondent.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed. 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 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, 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, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). 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, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
We agree with the Supreme Court's denial of the defendant's request to instruct the jury with respect to petit larceny as a lesser included offense of robbery in the second degree (see CPL 300.50 ; People v. McBroom , 134 A.D.3d 476, 20 N.Y.S.3d 366 ; People v. Durden , 5 A.D.3d 333, 775 N.Y.S.2d 248 ; People v. Wedgeworth , 104 A.D.2d 915, 480 N.Y.S.2d 251 ). There was no reasonable view of the evidence that would support a finding that the defendant retained the stolen property without the use of force (see People v. McBroom , 134 A.D.3d 476, 20 N.Y.S.3d 366 ; People v. Durden , 5 A.D.3d 333, 775 N.Y.S.2d 248 ; People v. Wedgeworth , 104 A.D.2d 915, 480 N.Y.S.2d 251 ).
The defendant's contention, raised in his pro se supplemental brief, 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, 933 N.Y.S.2d 386, quoting People v. Evans , 16 N.Y.3d 571, 575 n 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). Because 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. Barber , 133 A.D.3d 868, 872 ; People v. Maxwell , 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
The sentence imposed was not excessive (see People v. Suitte , 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions, raised in his pro se supplemental brief, are unpreserved for appellate review (see CPL 470.05[2] ) and, in any event, without merit.
MASTRO, J.P., RIVERA, MILLER and CHRISTOPHER, JJ., concur.