| People v Joseph |
| 2012 NY Slip Op 05758 [97 AD3d 838] |
| July 25, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anthony Joseph, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.),rendered January 19, 2006, convicting him of murder in the second degree and criminalpossession of a weapon in the second degree, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibusmotion which was to suppress his statements to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant was charged with murder in the second degree and other crimes arising from ahomicide outside the defendant's home in Yaphank. At trial, the defendant's cousin testified thatthe defendant was present at the scene but did not participate in the charged crimes. Theprosecutor cross-examined the defendant's cousin about his failure to come forward to lawenforcement officials with this exculpatory account. The defendant's contention that the CountyCourt erred in permitting this cross-examination is without merit, because the People laid aproper foundation (see People v Miller, 89 NY2d 1077, 1079 [1997]; People vDawson, 50 NY2d 311, 321 n 4 [1980]; People v Stokes, 282 AD2d 553 [2001];People v Douglas, 248 AD2d 550 [1998]), and defense counsel did not assert at thebench conference before the cross examination that the cousin had been advised by counsel notto come forward (see People v Dawson, 50 NY2d at 323; cf. People v Steede,149 AD2d 744, 745 [1989]). In addition, under these circumstances, the County Court was notobligated to deliver a specific jury instruction regarding the cousin's failure to come forward,because the defendant did not request one (see People v Dawson, 50 NY2d at 322-323;People v Givens, 132 AD2d 567 [1987]).
The defendant's contention that the County Court should have suppressed his statements tolaw enforcement officials is academic because the statements were not introduced at trial (see People v Carlucci, 80 AD3d621, 622 [2011]). The defendant's contention that the County Court erred in allowing intoevidence certain expert testimony regarding DNA found on a gun is unpreserved for appellatereview (see CPL 470.05 [2]; People v Laigo, 70 AD3d 970, 971 [2010]) and, in any event, iswithout merit (see People v Giampietro, 238 AD2d 355, 356 [1997]). The defendant'scontention that the County Court erred in precluding him from impeaching a witness about aprior youthful offender adjudication is without merit because the record demonstrates that theCounty [*2]Court did not preclude that impeachment.
The defendant's claim that he was deprived of the effective assistance of counsel is based, inpart, on matter appearing on the record and, in part, on matter outside the record, and thusconstitutes a " 'mixed claim' " of ineffective assistance (People v Maxwell, 89 AD3d 1108, 1109 [2011], quoting People v Evans, 16 NY3d 571,575 n 2 [2011], cert denied 565 US —, 132 S Ct 325 [2011]). Here, it is notevident from the matter appearing on the record that the defendant was deprived of the effectiveassistance of counsel (cf. People v Crump, 53 NY2d 824 [1981]; People vBrown, 45 NY2d 852 [1978]). Since the defendant's claim of ineffective assistance cannot beresolved without reference to matter outside the record, a CPL 440.10 proceeding is theappropriate forum for reviewing the claim in its entirety (see People v Freeman, 93 AD3d 805 [2012]; People vMaxwell, 89 AD3d at 1109; Peoplev Rohlehr, 87 AD3d 603, 604 [2011]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Florio, J.P., Balkin, Lott and Miller, JJ., concur.