- May 30, 2017
W. L. Fahey, New York, NY (Erica Horwitz of counsel), for
Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard
Joblove, Solomon Neubort, and Arieh Schulman of counsel), for
E. CHAMBERS, J.P. ROBERT J. MILLER COLLEEN D. DUFFY FRANCESCA
E. CONNOLLY, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Kings
County (Marrus, J.), rendered September 4, 2013, convicting
him of robbery in the second degree and assault in the third
degree, upon a jury verdict, and imposing sentence.
that the judgment is affirmed.
defendant's contention that the evidence was legally
insufficient to support his conviction of robbery in the
second degree (Penal Law § 160.10[a]) is unpreserved
for appellate review (see CPL 470.05; People
v Gray, 86 N.Y.2d 10, 19; People v Terranova,
147 A.D.3d 1086, 1086). In any event, viewing the evidence in
the light most favorable to the prosecution (see People v
Contes, 60 N.Y.2d 620, 621), we find it was legally
sufficient to establish the defendant's guilt beyond a
reasonable doubt (see People v Perez, 132 A.D.3d
911, 912; People v Jaen, 116 A.D.3d 975, 975).
Moreover, in fulfilling our responsibility to conduct an
independent review of the weight of the evidence (see CPL
470.15; People v Danielson, 9 N.Y.3d 342), 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).
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, 643).
defendant contends that the Supreme Court improperly denied
his request to listen to the recordings of telephone calls he
made from Rikers Island before transcripts of the recordings
were used to impeach his testimony on cross-examination.
Contrary to the defendant's contention, the defense was
not entitled to the prosecution's impeachment material
until after it was used to impeach the defendant on
cross-examination (see People v Lindsay, 131 A.D.3d
625, 626; People v Parchment, 92 A.D.3d 699, 700;
People v Gladden, 72 A.D.2d 568, 569).
defendant's contention that his right to due process was
violated by the prosecutor's misconduct on summation is
unpreserved for appellate review (see CPL 470.05), as the
defendant failed to object, request curative instructions, or
timely move for a mistrial (see People v Dunning,
148 A.D.3d 1047, 1048), and we decline to review the
contention in the exercise of our interest of justice
jurisdiction (see CPL 470.15[c]; ; People v
Jones, 139 A.D.3d 878, 880; People v Ellis, 133
A.D.3d 777, 778; People v Belle, 113 A.D.3d 630,
defendant's challenge to the Supreme Court's
instructions to the jury is also unpreserved for appellate
review, since he failed to request specific instructions or
object to the court's charge as given (see CPL 470.05;
People v Cruz, 96 N.Y.2d 857, 858; People v
Bradford, 137 A.D.3d 928, 929). Under the circumstances,
we decline to review this contention in the exercise of our
interest of justice jurisdiction (see People v
Addison, 107 A.D.3d 730, 731-732; People v
Jones, 103 A.D.3d 753, 754).
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; 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 ...