PETER B. SKELOS
Audrey A. Thomas, Rosedale, N.Y. (Omar S. Long and Sean–Patrick A. Coy on the brief), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Seth M. Lieberman, and Bruce Alderman of counsel), for respondent.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman, J.), rendered December 1, 2009, convicting him of gang assault in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification evidence.
ORDERED that the judgment is affirmed.
The hearing court properly denied that branch of the defendant's omnibus motion which was to suppress identification evidence. The People established in the first instance that the photographic identification procedure and lineup were not improper, and the defendant failed to establish that the procedures were unduly suggestive ( see People v. Chipp, 75 N.Y.2d 327, 335–336, 553 N.Y.S.2d 72, 552 N.E.2d 608,cert. denied498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70;People v. Seymour, 77 A.D.3d 976, 978, 910 N.Y.S.2d 487).
The Supreme Court properly denied the defendant's CPL 330.30 motion. The defendant failed to establish that the People violated his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. To the extent that the defendant's factual assertions concerning the undisclosed material were based on matter outside the trial record, the Supreme Court properly declined to consider them ( seeCPL 330.30[1]; People v. Wolf, 98 N.Y.2d 105, 119, 745 N.Y.S.2d 766, 772 N.E.2d 1124;People v. Thomas, 71 A.D.3d 1061, 1062, 897 N.Y.S.2d 244;People v. Ai Jiang, 62 A.D.3d 515, 880 N.Y.S.2d 12).
The defendant's contention that the prosecutor improperly vouched for the credibility of an eyewitness during summation is without merit. The challenged remarks were responsive to defense counsel's summation ( see People v. McCoy, 89 A.D.3d 1110, 1110, 933 N.Y.S.2d 583;People v. Carey, 67 A.D.3d 925, 925, 888 N.Y.S.2d 615). The defendant's contentions that he was deprived of a fair trial by certain other remarks made by the prosecutor during summation are unpreserved for appellate review ( seeCPL 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 either fair comment on the evidence adduced at trial or responsive to defense counsel's summation ( see 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, 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). 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 ( 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. Freeman, 93 A.D.3d 805, 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).
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 establish the defendant's guilt of gang assault in the first degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 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, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;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).
“Since the defendant's guilt was proven beyond a reasonable doubt at trial, there can be no appellate review of the defendant's claim that the evidence presented to the grand jury was legally insufficient” ( People v. Bajana, 82 A.D.3d 1111, 1112, 919 N.Y.S.2d 194;seeCPL 210.30[6]; People v. Folkes, 43 A.D.3d 956, 957, 841 N.Y.S.2d 365).
The defendant's remaining contentions are without merit.