| People v Denham |
| 2012 NY Slip Op 05543 [97 AD3d 691] |
| July 11, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v KevinDenham, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Steven A. Bender, andRichard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Cacace, J.), rendered March 9, 2010, convicting him of burglary in the first degree, rape in thefirst degree (two counts), criminal sexual act in the first degree (two counts), robbery in thesecond degree, assault in the second degree, and criminal possession of stolen property in thefifth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, without a hearing, of that branch of the defendant's omnibus motion which was, in effect,to direct the complainant to provide handwriting exemplars.
Ordered that the judgment is affirmed.
The defendant's contention 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]). In this case, it is not evident from the matter appearing on the record that thedefendant was deprived of the effective assistance of counsel (cf. People v Crump, 53NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]). Since the defendant'scontention that he was deprived of the effective assistance of counsel cannot be resolved withoutreference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum forreviewing the claim in its entirety (seePeople v Freeman, 93 AD3d 805 [2012]; People v Maxwell, 89 AD3d at 1109;People v Rohlehr, 87 AD3d603, 604 [2011]).
The defendant's contention, raised in his pro se supplemental brief, that the Supreme Courterred in denying that branch of his omnibus motion which was, in effect, to direct thecomplainant to provide handwriting exemplars for forensic analysis and comparison with twoletters allegedly sent by the complainant to the defendant while he was incarcerated, is withoutmerit. "A criminal defendant's rights to discovery are contained in CPL article 240" (Matterof Brown v Grosso, 285 AD2d 642, 644 [2001]; see People v Copicotto, 50 NY2d222, 225 [1980]). "Where no statutory right of discovery is provided, no substantive right ofdiscovery exists" (Matter of Brown v Grosso, 285 AD2d at 644). There is no statutoryright entitling a defendant to handwriting exemplars from a complainant (see CPL art240). Moreover, "[d]iscovery which is unavailable pursuant to statute [*2]may not be ordered based on principles of due process because'there is no general constitutional right to discovery in criminal cases' " (Matter of Pirro vLaCava, 230 AD2d 909, 910 [1996], quoting Matter of Miller v Schwartz, 72 NY2d869, 870 [1988]). In any event, the defendant's submissions on the motion failed to establish areasonable probability that the letters had been written by the complainant and, thus, that theywould be material to his defense (seePeople v Fewell, 43 AD3d 1293, 1294-1295 [2007]). Accordingly, the Supreme Courtproperly denied that branch of the defendant's omnibus motion which was, in effect, to direct thecomplainant to provide handwriting exemplars. Skelos, J.P., Dickerson, Leventhal and Roman,JJ., concur.