Lynn W.L. Fahey, New York, N.Y. (Samuel Brown of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Amy Appelbaum, and Jean M. Joyce of counsel), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Riviezzo, J.), rendered April 15, 2013, convicting
him of assault in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to disprove his justification defense beyond a reasonable doubt is unpreserved for appellate review (
see CPL 470.052;
People v. Hawkins, 11 N.Y.3d 484, 492,
872 N.Y.S.2d 395,
900 N.E.2d 946;
People v. Bochi, 119 A.D.3d 811, 812,
989 N.Y.S.2d 301;
People v. Landri, 104 A.D.3d 791, 791,
960 N.Y.S.2d 504). In any event, 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 disprove the defendant's justification defense beyond a reasonable doubt (
see
People v. Pickens, 60 A.D.3d 699, 701,
874 N.Y.S.2d 570;
People v. Chung, 39 A.D.3d 558, 559,
835 N.Y.S.2d 223). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (
see CPL 470.155;
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 their demeanor (
see
People v. Mateo, 2 N.Y.3d 383, 410,
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, we are satisfied that the rejection of the justification defense and the verdict of guilt were 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).
Contrary to the defendant's contentions, the trial court providently exercised its discretion by precluding the defendant from testifying about his injuries from a prior assault in which he was the victim (see People v. Black, 90 A.D.3d 1066, 1067, 934 N.Y.S.2d 850; People v. Bowen, 67 A.D.3d 1022, 1023, 889 N.Y.S.2d 645; People v. Celifie, 287 A.D.2d 465, 466, 730 N.Y.S.2d 884).
The defendant's contention that certain remarks made by the prosecutor during summation were improper is unpreserved for appellate review, as his counsel raised no objection to those remarks (see CPL 470.052; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89; People v. Mamadou, 129 A.D.3d 993, 994, 13 N.Y.S.3d 440; People v. Howard, 120 A.D.3d 1259, 1260, 992 N.Y.S.2d 144; People v. Alexander, 100 A.D.3d 649, 650, 952 N.Y.S.2d 892). In any event, the challenged summation remarks were fair comment upon the evidence, responsive to the defense's summation, or within the bounds of rhetorical comment, or otherwise do not warrant 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).
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). 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. Sirico, 17 N.Y.3d 744,
929 N.Y.S.2d 14,
952 N.E.2d 1006;
People v. Addison, 107 A.D.3d 730, 732,
966 N.Y.S.2d 217;
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 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. Addison, 107 A.D.3d at 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).