Opinion
2013–05582 Ind. No. 12–00313
05-23-2018
The PEOPLE, etc., respondent, v. Brian STEWART, appellant.
Lipsitz Green Scime Cambria LLP, Buffalo, N.Y. (Erin E. McCampbell of counsel), for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Christine DiSalvo and Steven A. Bender of counsel), for respondent.
Lipsitz Green Scime Cambria LLP, Buffalo, N.Y. (Erin E. McCampbell of counsel), for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Christine DiSalvo and Steven A. Bender of counsel), for respondent.
REINALDO E. RIVERA, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Westchester County (Barry Warhit, J.), rendered April 16, 2013, convicting him of rape in the third degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
We agree with the County Court's Molineux ruling (see People v. Molineux , 168 N.Y. 264, 61 N.E. 286 ). The evidence at issue was admissible as relevant background material to explain to the jury the relationship between the defendant and the complainant, as evidence of the defendant's identity as the perpetrator, as evidence of his motive and intent, and as evidence of his consciousness of guilt (see People v. Smalls , 145 A.D.3d 802, 802, 43 N.Y.S.3d 123 ; People v. Maxey , 129 A.D.3d 1664, 1665, 14 N.Y.S.3d 845 ; People v. Griffin , 126 A.D.2d 743, 744, 511 N.Y.S.2d 136 ). The defendant's argument that the court's limiting instructions regarding this evidence were insufficient is unpreserved for appellate review (see People v. Devaughn , 84 A.D.3d 1394, 1395, 925 N.Y.S.2d 114 ; People v. Norman , 40 A.D.3d 1128, 1129–1130, 837 N.Y.S.2d 694 ), and, in any event, without merit.
Furthermore, we agree with the County Court's determination to permit the admission into evidence of an audio recording of a telephone conversation the defendant had with the victim, and a transcript of that conversation, which the defendant contends were subject to a CPL 160.50 sealing order in a Rockland County prosecution of the defendant. "Evidence obtained as the result of a statutory violation lacking constitutional implications has long been held admissible as evidence of guilt" ( People v. Torres , 291 A.D.2d 273, 274, 738 N.Y.S.2d 312 ; see People v. Afrika , 13 A.D.3d 1218, 1220, 787 N.Y.S.2d 774 ; People v. Peterkin , 190 A.D.2d 825, 826, 593 N.Y.S.2d 833 ). Here, the violation of CPL 160.50 did "not implicate constitutional considerations," and, therefore, did not warrant suppression ( People v. Patterson , 78 N.Y.2d 711, 716–718, 579 N.Y.S.2d 617, 587 N.E.2d 255 ; see People v. Torres , 291 A.D.2d at 274, 738 N.Y.S.2d 312 ; People v. Williams , 271 A.D.2d 363, 364, 708 N.Y.S.2d 57 ; People v. Peterkin , 190 A.D.2d at 826, 593 N.Y.S.2d 833 ).
The defendant's claim that he was deprived of the constitutional right to 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 ). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (see People v. Taylor, 1 N.Y.3d 174, 176–177, 770 N.Y.S.2d 711, 802 N.E.2d 1109 ; People v. Cruz , 127 A.D.3d 987, 988, 6 N.Y.S.3d 644 ; People v. Crandall , 199 A.D.2d 867, 869, 606 N.Y.S.2d 357 ; cf. People v. Robinson , 118 A.D.3d 1028, 1028, 987 N.Y.S.2d 457 ; People v. Salazar, 1 A.D.3d 387, 388, 766 N.Y.S.2d 862 ). Since the defendant's claim of ineffective assistance 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 (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 ; People v. Rohlehr , 87 A.D.3d 603, 604, 927 N.Y.S.2d 919 ).
RIVERA, J.P., MILLER, HINDS–RADIX and MALTESE, JJ., concur.