| People v Guevara |
| 2012 NY Slip Op 04363 [96 AD3d 781] |
| June 6, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Hector Guevara, Appellant. |
—[*1]
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Laurie K. Gibbons and Sarah S.Rabinowitz of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Sullivan,J.), rendered May 17, 2010, convicting him of assault in the second degree and criminalpossession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The evidence relating to the defendant's gang affiliation and the expert testimony regardingthe customs, practices, and rivalries of certain gangs, was probative of the defendant's motive andprovided a necessary background to explain to the jury the relationship between the defendantand the complainant (see People vDevers, 82 AD3d 1261, 1262-1263 [2011]; People v Flores, 46 AD3d 570, 571 [2007]; People v Cruz, 46 AD3d 567, 568[2007]; People v Oliver, 19 AD3d512, 512-513 [2005]; People vCain, 16 AD3d 288, 288-289 [2005]; People v Wilson, 14 AD3d 463, 463 [2005]; People v Filipe, 7 AD3d 539, 540[2004]; People v Edwards, 295 AD2d 270, 271 [2002]; People v Newby, 291AD2d 460, 460 [2002]). Since the probative value of this evidence outweighed any prejudice tothe defendant, the Supreme Court providently exercised its discretion in permitting the People toadduce such evidence (see People v Flores, 46 AD3d at 571; People v Filipe, 7 AD3d 539[2004]; People v Newby, 291 AD2d at 460).
The defendant contends that the Supreme Court erred in allowing the People to impeach theirown witness, the complainant, through the use of his grand jury testimony because thecomplainant's testimony during direct examination at trial did not affirmatively contradict ordamage the People's position. This contention, however, is unpreserved for appellate review(see CPL 470.05 [2]). In any event, contrary to the defendant's contention, thecomplainant's testimony during direct examination did affirmatively damage the People's case(see CPL 60.35 [1]; People v Mercado, 162 AD2d 722, 723 [1990]). Further, thecourt properly instructed the jurors that the prior statement was to be considered by them forimpeachment purposes only, and not as direct evidence (see CPL 60.35; People vTrower, 183 AD2d 928, 928 [1992]; People v Broomfield, 163 AD2d 403, 404[1990]; People v Magee, 128 AD2d 811, 811 [1987]).
The defendant's challenge to the prosecutor's allegedly improper summation comments isunpreserved for appellate review, since the defendant failed to raise any objection to thechallenged comments at trial (see CPL 470.05 [2]; People v Romero, 7 NY3d 911, 912 [2006]; People [*2]v James, 72 AD3d 844, 845 [2010]; People v Wilson, 71 AD3d 799,800 [2010]). In any event, we disagree with the defendant's contention that the prosecutor'scomments amounted to telling the jury that the complainant's prior testimony before the grandjury could be used as evidence in chief. Indeed, the prosecutor reminded the jury that he was"allowed to introduce [the complainant's] testimony with respect to his credibility." Moreover,contrary to the defendant's contention, the prosecutor did not shift the burden of proof in hissummation and the Supreme Court correctly conveyed the burden of proof requirements to thejury (see People v Goris, 37 AD3d204, 205-206 [2007]; People v Rosario, 302 AD2d 266 [2003]; People vFerrer, 245 AD2d 569, 570 [1997]; People v McCray, 167 AD2d 304, 305 [1990]).
Finally, the defendant's claim that he was deprived of the constitutional right to the effectiveassistance of counsel is based, in part, on matter appearing on the record and, in part, on matteroutside the record, and thus constitutes a " 'mixed claim' " of ineffective assistance (People v Maxwell, 89 AD3d 1108,1109 [2011], quoting People vEvans, 16 NY3d 571, 575 n 2 [2011], cert denied 565 US —, 132 S Ct325 [2011]). Here, it is not evident from the matter appearing on the record that the defendantwas 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 ineffectiveassistance cannot be resolved without reference to matter outside the record, a CPL 440.10proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Freeman, 93 AD3d805 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603,604 [2011]). Dillon, J.P., Dickerson, Austin and Miller, JJ., concur.