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People v. McCalmon

Supreme Court of New York, Second Department

May 10, 2017

The People of the State of New York, respondent,
v.
Lance McCalmon, appellant. Ind. No. 341/13

          Lynn W. L. Fahey, New York, NY (Benjamin S. Litman of counsel), for appellant, and appellant pro se.

          Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Anastasia Spanakos, and Kayonia L. Whetstone of counsel), for respondent.

          RUTH C. BALKIN, J.P. JEFFREY A. COHEN ROBERT J. MILLER VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lopresto, J.), rendered June 23, 2014, convicting him of burglary in the first degree, robbery in the first degree (two counts), robbery in the second degree, and unlawful imprisonment in the second 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 testimony.

         ORDERED that the judgment is affirmed.

         The defendant's contention that the verdict was repugnant is unpreserved for appellate review, as the defendant failed to raise that issue before the jury was discharged (see People v Alfaro, 66 N.Y.2d 985, 987; People v Satloff, 56 N.Y.2d 745, 746; People v Callistro 146 A.D.3d 795). The defendant's contention that a police detective's testimony improperly bolstered the complainant's testimony (see People v Trowbridge, 305 NY 471) is also unpreserved for appellate review (see CPL 470.05 [2]; People v Rodriguez, 139 A.D.3d 883, 884; People v Watson, 121 A.D.3d 921, 922). Under the circumstances, we decline to reach these issues in the exercise of our interest of justice jurisdiction (see People v Watson, 82 A.D.3d 1276, 1277, affd 20 N.Y.3d 1018; People v Johns, 30 A.D.3d 614, 614-615; People v Spears, 188 A.D.2d 669, 670; People v Wilson, 187 A.D.2d 689, 690; People v Ferguson, 146 A.D.2d 798, 798).

         The defendant's contention, raised in his main brief and his pro se supplemental brief, 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; see People v Evans, 16 N.Y.3d 571, 575). 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 Ockrey, 142 A.D.3d 511, 511). 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 id.; People v Maxwell, 89 A.D.3d at 1109).

         The defendant contends that the Supreme Court erred in denying that branch of his omnibus motion which was to suppress identification testimony because the photo array identification procedure was unduly suggestive. Since the defendant did not raise the specific ground upon which he now challenges the photo array identification procedure, his argument is unpreserved for appellate review (see CPL 470.05[2]; People v Lago, 60 A.D.3d 784, 784-785; People v Warren, 50 A.D.3d 706, 707; People v Washington, 40 A.D.3d 1136, 1136-1137). In any event, the photo array was not unduly suggestive (see People v Epolito, 101 A.D.3d 1603; People v Spence, 92 A.D.3d 905; People v Lago, 60 A.D.3d at 785; People v Foster, 272 A.D.2d 410).

         The defendant's contention, raised in his pro se supplemental brief, that the Supreme Court erred in denying that branch of his omnibus motion which was premised on his assertion that the police lacked probable cause to arrest him is without merit (see generally United States v Crews, 445 U.S. 463, 474; People v Young, 55 N.Y.2d 419, 426; People v Haymon, 277 A.D.2d 971, 972; People v Mackie, 133 A.D.2d 514, 515).

         The defendant's contention, raised in his pro se supplemental brief, that the evidence was legally insufficient to support his convictions is unpreserved for appellate review (see CPL 470.05[2]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.

         The defendant's contention, raised in his main brief and his pro se supplemental brief, that the verdict of guilt was against the weight of the evidence is without merit. Upon the exercise of our factual review power (see CPL 470.15[5]), we are satisfied that the verdict of guilt as to the crimes of which the defendant was convicted was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633, 644-645). The defendant's acquittal of one of the counts charging him with burglary in the first degree does not, given the entire record of the trial, convince us otherwise (see generally People v Mitchell, 148 A.D.3d 730).

         The defendant's remaining contentions, including those raised in his pro se ...


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