| People v Washington |
| 2010 NY Slip Op 02597 [71 AD3d 1064] |
| March 23, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v OmarWashington, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Richard Longworth Hecht, Anthony J.Servino, James J. Bavero, and Valerie A. Livingston of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Zambelli, J.), rendered August 28, 2007, convicting him of murder in the second degree (twocounts), robbery in the first degree (two counts), and assault in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the County Court's jury instruction regarding robbery in thefirst degree was erroneous is unpreserved for appellate review (see CPL 470.05 [2];People v Gray, 86 NY2d 10, 19 [1995]; People v Williams, 38 AD3d 925, 926[2007]), as is his challenge to the legal sufficiency of the evidence (see CPL 470.05 [2];People v Hawkins, 11 NY3d 484 [2008]). We decline to review those contentions in theexercise of our interest of justice jurisdiction (see CPL 470.15 [6]).
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hear thetestimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt was not against the weight ofthe evidence (see People v Romero, 7 NY3d 633 [2006]).
In reviewing the defendant's claim of ineffective assistance of counsel, raised in hissupplemental pro se brief, our focus must be on the " 'fairness of the process as a whole' "(People v Henry, 95 NY2d 563, 566 [2000], quoting People v Benevento, 91NY2d 708, 714 [1998]), and we must determine whether defense counsel's conduct constitutedegregious and prejudicial error such that the defendant did not receive a fair trial (see Peoplev Benevento, 91 NY2d at 713; People v Flores, 84 NY2d 184, 188-189 [1994]).Here, the defendant received a fundamentally fair trial, and reversal is not warranted based onineffective assistance of counsel.[*2]
The defendant's remaining contention, raised in hissupplemental pro se brief, that the Supreme Court effectively deprived him of his right to testify,is based on matter dehors the record and is thus not reviewable on direct appeal (see People vGonzalez, 44 AD3d 871, 872 [2007]; see also People v Borthwick, 51 AD3d 1211[2008]; People v Thomas, 299 AD2d 942 [2002]). Rivera, J.P., Angiolillo, Dickersonand Roman, JJ., concur.