People v. Browder

127 A.D.3d 786, 6 N.Y.S.3d 281

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 1, 2015
• Docket: 2012-05121
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robbins, J.), rendered December 11, 2012, convicting him of assault in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions (Berkowitz, J.), of the suppression of identification testimony.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the complaining witness’s viewing of a surveillance video of the assault did not constitute an identification procedure (see People v Gee, 99 NY2d 158, 162 [2002]).

The defendant’s contention that the evidence was legally insufficient to support his convictions of assault in the second degree and criminal possession of a weapon in the third degree is unpreserved for appellate review (see People v Delgado, 109 AD3d 483 [2013]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt of those crimes beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), 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 NY3d 383 [2004]). 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 NY3d 633 [2006]).

The defendant’s claim of ineffective 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 AD3d 1108, 1109 [2011]; see People v Taylor, 98 AD3d 593, 594 [2012], affd sub nom. People v Heidgen, 22 NY3d 259 [2013]). 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 NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]). 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 Taylor, 98 AD3d at 594; People v Delancey, 94 AD3d 1015 [2012]; People v Maxwell, 89 AD3d at 1109).

The defendant’s remaining contentions are unpreserved for appellate review and, in any event, without merit.

Dillon, J.P., Leventhal, Chambers and Roman, JJ., concur.