| People v Bermejo |
| 2010 NY Slip Op 07776 [77 AD3d 965] |
| October 26, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JoseBermejo, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and Ushir Pandit of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Erlbaum,J.), rendered July 27, 2009, convicting him of forcible touching, assault in the third degree, andendangering the welfare of a child (five counts), after a nonjury trial, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's claims that his rights pursuant to Brady v Maryland (373 US 83[1963]) were violated are based entirely on matter dehors the record and, thus, cannot bereviewed by this Court on direct appeal (see People v Helenese, 75 AD3d 653, 655 [2010]; People v Valdes, 66 AD3d 925[2009]; People v Jackson, 41 AD3d498, 500 [2007]).
The Supreme Court correctly ruled at the Molineux hearing (see People vMolineux, 168 NY 264 [1901]) that evidence of the defendant's prior sexual conduct towardthe complainant was admissible as evidence of the defendant's motive and intent and asbackground material, and was relevant to enable the factfinder to understand the defendant'srelationship with the complainant (seePeople v Hanson, 30 AD3d 537, 538 [2006]; People v Ramsey, 1 AD3d 538 [2003]; People v Howe, 292AD2d 542 [2002]; People v Shorey, 172 AD2d 634 [1991]). The defendant's contentionthat the People exceeded the scope of the Supreme Court's Molineux ruling isunpreserved for appellate review and, in any event, is without merit (see CPL 470.05 [2];People v Dahlbender, 23 AD3d493, 495 [2005]; People v Taylor, 302 AD2d 480 [2003]; People v Samlal,292 AD2d 400 [2002]; People v Rowe, 278 AD2d 256 [2000]; People v Davis,169 AD2d 774, 775 [1991]).
To the extent that the defendant's claim that he was deprived of the effective assistance ofcounsel involves matter dehors the record, it cannot be reviewed on direct appeal (see People v Evans, 69 AD3d 649[2010]). To the extent that the claim can be reviewed, the record reveals that defense counselprovided effective assistance (see People v Henry, 95 NY2d 563 [2000]; People vBenevento, 91 NY2d 708, 712 [1998]). Fisher, J.P., Dillon, Florio and Lott, JJ., concur.