| People v Ai Jiang |
| 2009 NY Slip Op 03848 [62 AD3d 515] |
| May 14, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v AiJiang, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Paula-Rose Stark of counsel), forrespondent.
Judgment, Supreme Court, New York County (Rena K. Uviller, J., on consolidation motion;William A. Wetzel, J., at jury trial and sentence), rendered July 31, 2006, convicting defendantof attempted murder in the second degree, gang assault in the first degree, assault in the firstdegree (three counts) and assault in the second degree, and sentencing him to an aggregate termof 15 years, unanimously affirmed.
The court properly exercised its discretion by joining defendant's indictments relating toseparate incidents, since the charges were legally similar (see CPL 200.20 [2] [c]).Defendant has not demonstrated any substantial likelihood that the jury was unable to considerthe proof as to each of the charges separately, or that he had important testimony to give in onecase and a genuine need to refrain from testifying in the other (see CPL 200.20 [3]; People v Lane, 56 NY2d 1, 8-9 [1982]; People vStreitferdt, 169 AD2d 171, 176 [1991], lv denied 78 NY2d 1015 [1991]; Peoplev Ndeye, 159 AD2d 397 [1990], lv denied 76 NY2d 793 [1990]).
All of defendant's challenges to the court's charge and to the prosecutor's opening statement,elicitation of evidence and summation are unpreserved and we decline to review them in theinterest of justice. As an alternative holding, we find no basis for reversal. While the courtshould have instructed the jury to consider the incidents separately, the court's charge taken as awhole (see People v Coleman, 70 NY2d 817, 819 [1987]), as well as the verdict sheetwhich clearly set out the different incidents, informed the jury of the proper standard to beapplied, and any error was harmless. Likewise, a portion of the prosecutor's opening that couldbe viewed as a propensity argument, and testimony that may have technically violated theprinciple set forth in People v Trowbridge (305 NY 471 [1953]) were, at worst, harmlesserror (see People v Crimmins, 36 NY2d 230 [1975]). Defendant's remaining unpreservedclaims are without merit (see People v Overlee, 236 AD2d 133 [1997], lv denied91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lvdenied 81 NY2d 884 [1993]).
To the extent the record permits review, we find that defendant received effective assistanceunder the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714[1998]; see also Strickland v Washington, 466 US 668 [1984]). [*2]Defendant's ineffective assistance of counsel claims fall into twocategories. First, with regard to the unpreserved errors discussed previously, defendant arguesthat his counsel was ineffective for failing to make objections or requests to charge. However,counsel's failure to do so did not deprive defendant of a fair trial or cause him any prejudice (see People v Caban, 5 NY3d 143,155-156 [2005]; People v Hobot, 84 NY2d 1021, 1024 [1995]; compare People v Turner, 5 NY3d476 [2005]). None of these arguments, even if successfully made to the trial court, wouldhave affected the outcome of the case.
Defendant's other ineffective assistance claims are unreviewable on direct appeal becausethey involve matters outside the record (see People v Rivera, 71 NY2d 705, 709 [1988];People v Love, 57 NY2d 998 [1982]). Although defendant raised these claims in apresentence motion to set aside the verdict pursuant to CPL 330.30 (1), that motion wasprocedurally defective because such a motion is limited to grounds appearing in the record(see People v Wolf, 98 NY2d 105, 119 [2002]). To the extent the motion could bedeemed a de facto or premature motion to vacate judgment pursuant to CPL 440.10, the issuesraised in the motion are unreviewable since defendant failed to obtain permission from this Courtto appeal (see CPL 450.15 [1]; 460.15; People v Villegas, 298 AD2d 122, 123[2002], lv denied 99 NY2d 565 [2002]). As an alternative holding, we also reject themotion on the merits (see CPL 440.30 [4] [b], [d]; People v Satterfield, 66 NY2d796, 799-800 [1985]). Defendant did not establish a basis for an evidentiary hearing. Defendant'sfactual allegations are supported by his motion counsel's affirmation rather than by witnesseswith personal knowledge, or are supported only by defendant's affidavit. Furthermore, theseclaims are contradicted by defendant's trial counsel's detailed affirmation, the record of the trialand pretrial proceedings, and the court's own recollection.
Motion seeking leave to enlarge record denied. Concur—Mazzarelli, J.P., Saxe,Nardelli, Renwick and Freedman, JJ.