| People v Taylor |
| 2012 NY Slip Op 05935 [98 AD3d 593] |
| August 8, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Taliyah Taylor, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and AnneGrady of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Collini,J.), rendered November 13, 2008, convicting her of murder in the second degree (depravedindifference murder), reckless endangerment in the first degree, and operating a motor vehiclewhile under the influence, upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing, of that branch of the defendant's omnibus motion which was tosuppress her statements to law enforcement officials.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly denied that branch of heromnibus motion which was to suppress her statements to law enforcement officials. A review ofthe totality of the circumstances (see People v Mateo, 2 NY3d 383, 413 [2004], certdenied 542 US 946 [2004]; People v Anderson, 42 NY2d 35, 38 [1977])demonstrates that the defendant's statements to the police, which were given after she wasinformed of, and waived, her Miranda rights (see Miranda v Arizona, 384 US 436[1966]), were voluntarily made (see CPL 60.45 [1]; People v Mateo, 2 NY3d at414; People v Huntley, 15 NY2d 72 [1965]; People v Seabrooks, 82 AD3d 1130, 1130-1131 [2011]). Thedefendant improperly relies on trial testimony in support of her contention that the statement wasinvoluntarily made (see People vCastellanos, 65 AD3d 555, 556 [2009]; People v O'Neil, 62 AD3d 727 [2009]; People v Kocowicz,281 AD2d 643 [2001]).
The defendant's contention that the evidence was legally insufficient to support her [*2]convictions is without merit. Viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that itwas legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover,upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guiltwas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant contends that she was deprived of the constitutional right to the effectiveassistance of counsel due to, among other things, the defense attorney's failure to present apsychiatric defense. Although the failure to present such a defense appears on the face of therecord, the defendant's ineffective assistance claim also depends, in part, upon matter outside therecord, including a showing that, as the defendant contends, her attorney failed to review certaintape recordings of telephone conversations between the defendant and potential witnesses, and ashowing that defense counsel did not have a "strategic or other legitimate explanation[ ]" for hisallegedly deficient conduct (People v Rivera, 71 NY2d 705, 709 [1988]). Since thedefendant's claim of ineffective assistance of counsel is based, in part, on matter appearing on therecord and, in part, on matter outside the record, she has presented a " 'mixed claim[ ]' ofineffective assistance" (People vMaxwell, 89 AD3d 1108, 1109 [2011], quoting People v Evans, 16 NY3d 571, 575 n 2 [2011], cert denied565 US —, 132 S Ct 325 [2011]). In this case, it is not evident from the matter appearingon the record that the defendant was 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 ineffective assistance cannot be resolved without reference tomatter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing theclaim in its entirety (see People vFreeman, 93 AD3d 805 [2012], lv denied 19 NY3d 960 [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, 85[1982]).
The defendant's remaining contention is without merit. Rivera, J.P., Eng, Lott and Miller, JJ.,concur.