People v. Aviles (Julio)

71 Misc. 3d 133(A), 2021 NY Slip Op 50331(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 16, 2021
• Docket: 570004/17
• Status: Unpublished

Opinion

People v Aviles (2021 NY Slip Op 50331(U)) [*1]

People v Aviles (Julio)

2021 NY Slip Op 50331(U) [71 Misc 3d 133(A)]

Decided on April 16, 2021

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 16, 2021

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: McShan, J.P., Brigantti, Hagler, JJ.
570004/17

The People of the State of New York, Respondent,

against

Julio Aviles, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Ann E. Scherzer, J.), rendered September 22, 2016, after a jury trial, convicting him of driving while intoxicated per se and driving while intoxicated, and imposing sentence.

Per Curiam.

Judgment of conviction (Ann E. Scherzer, J.), rendered September 22, 2016, affirmed.

Defendant's claim that the prosecutor's opening and closing statements deprived him of a fair trial is unpreserved, and we decline to review the issue in the interest of justice (see CPL 470.05 [2]; People v Romero, 7 NY3d 911, 912 [2006]; People v LaValle, 3 NY3d 88, 116 [2004]). As an alternative holding, we find that the challenged remarks generally constituted fair comment on the evidence and the inferences to be drawn therefrom, and did not shift the burden of proof or deprive defendant of a fair trial (see People v Galloway, 54 NY2d 396, 400 [1981]; People v Overlee, 236 AD2d 133, 138-144 [1997], appeal denied 91 NY2d 976 [1998]). To the extent that the prosecutor may have exceeded the bounds of permissible rhetorical comment, any error was harmless in light of the overwhelming evidence of guilt (see People v Crimmins, 36 NY2d 230, 241-242 [1975]).

Defendant's ineffective assistance of counsel claims based on his trial counsel's failure to object to the challenged comments are unreviewable on direct appeal because they involve matters outside the record concerning possible strategic explanations for not objecting (see e.g. People v Rios, 139 AD3d 620 [2016], lv denied 28 NY3d 973 [2016]; People v Almonte, 90 AD3d 579, 580 [2011], lv denied 19 NY3d 956 [2012]). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]). Defendant [*2]has not shown that the absence of objections fell below an objective standard of reasonableness, or that they deprived defendant of a fair trial or affected the outcome of the case.

All concur.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Clerk of the Court
Decision Date: April 16, 2021