Opinion
2013-03-6
The PEOPLE, etc., respondent, v. Forrest THOMAS, appellant.
Gary E. Eisenberg, New City, N.Y., for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), for respondent.
Gary E. Eisenberg, New City, N.Y., for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), for respondent.
MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, and SANDRA L. SGROI, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Dutchess County (Marlow, J.), rendered March 18, 2009, as amended March 19, 2009, convicting him of assault in the first degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Hayes, J.), of that branch of the defendant's omnibus motion which was to suppress identification evidence.
ORDERED that the judgment, as amended, is affirmed.
The hearing court properly denied that branch of the defendant's omnibus motion which was to suppress identification evidence. The participants in the photo array were sufficiently similar to the defendant in appearance so that there was little likelihood that the defendant would be singled out for identification based on particular characteristics ( see People v. Brown, 89 A.D.3d 1032, 933 N.Y.S.2d 339;People v. Ragunauth, 24 A.D.3d 472, 472, 805 N.Y.S.2d 654;People v. Wright, 297 A.D.2d 391, 391, 746 N.Y.S.2d 611;People v. Williams, 289 A.D.2d 270, 270–271, 734 N.Y.S.2d 463).
Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to prove the defendant's guilt beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), 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).
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, quoting People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457,cert. denied––– U.S. ––––, 132 S.Ct. 325, 181 L.Ed.2d 201;see People v. Jackson, 97 A.D.3d 693, 694, 947 N.Y.S.2d 613). It is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel ( cf. People v. Crump, 53 N.Y.2d 824, 440 N.Y.S.2d 170, 422 N.E.2d 815;People v. Brown, 45 N.Y.2d 852, 410 N.Y.S.2d 287, 382 N.E.2d 1149). 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. Jackson, 97 A.D.3d at 694, 947 N.Y.S.2d 613;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).