People v. Jemmott

132 A.D.3d 698, 17 N.Y.S.3d 318

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Margulis, J.), rendered March 1, 2012, convicting him of robbery in the first degree, robbery in the third degree, and petit larceny, after a nonjury trial, and imposing sentence.

Ordered that the judgment is affirmed.

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 prove the defendant’s guilt of robbery in the first degree, robbery in the third degree, and petit larceny 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, 348 [2007]), we accord great deference to the factfinder’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). 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).

Leventhal, J.P., Chambers, Austin and Miller, JJ., concur.