People v. Guzman

Mark Diamond, New York, N.Y., for appellant.

Madeline Singas, District Attorney, Mineola, N.Y. (Yael V. Levy and W. Thomas Hughes of counsel), for respondent.

REINALDO E. RIVERA, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX and HECTOR D. LaSALLE, JJ.

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Donnino, J.), rendered June 13, 2014, convicting him of murder in the second degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the entirely circumstantial evidence in this case in the light most favorable to the prosecution, and giving it the benefit of every reasonable inference to be drawn from it (see People v. Lewis, 64 N.Y.2d 1111, 1112, 490 N.Y.S.2d 166, 479 N.E.2d 802 ; 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 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, 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 ).

The defendant's contention that the Supreme Court's circumstantial evidence charge was inadequate is unpreserved for appellate review (see CPL 470.05 [2] ; People v. Rudolph, 132 A.D.3d 912, 913, 18 N.Y.S.3d 171 ) and, in any event, without merit.

The defendant's contention that certain remarks made by the prosecutor during summation deprived him of a fair trial is also unpreserved for appellate review, since he either failed to object to the remarks at issue, made only a general objection, or failed to request further curative relief when his objections were sustained (see CPL 470.05[2] ; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ). In any event, the challenged remarks were fair comment on the evidence and the reasonable inferences to be drawn therefrom (see People v. Carter, 130 A.D.3d 1060, 14 N.Y.S.3d 901 ; People v. Ramrattan, 126 A.D.3d 1013, 6 N.Y.S.3d 131 ; People v. Williams, 123 A.D.3d 1152, 997 N.Y.S.2d 499 ), fair response to the defense summation (see People v. Johnson, 127 A.D.3d 1234, 5 N.Y.S.3d 902 ), or do not

otherwise require reversal ( see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. Rivera, 128 A.D.3d 857, 9 N.Y.S.3d 119 ; People v. Philips, 120 A.D.3d 1266, 992 N.Y.S.2d 104 ).

The defendant's contention 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 ; see People v. Rosado, 134 A.D.3d 1133, 22 N.Y.S.3d 235 ). 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. Fabers, 133 A.D.3d 616, 617–618, 20 N.Y.S.3d 89 ). Since 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 (see People v. Renaud, 137 A.D.3d 818, 27 N.Y.S.3d 578 [2016] ; People v. Addison, 107 A.D.3d 730, 732, 966 N.Y.S.2d 217 ; 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 ).