| People v Thompson |
| 2012 NY Slip Op 06828 [99 AD3d 819] |
| October 10, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Derrick Thompson, 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 (Kron, J.),rendered May 19, 2010, convicting him of burglary in the second degree and grand larceny in thethird degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's challenge to the Supreme Court's Sandoval ruling (see People vSandoval, 34 NY2d 371 [1974]) is without merit. The court struck an appropriate balancebetween the probative value of the defendant's prior crimes on the issue of credibility and thepossible prejudice to the defendant (seePeople v Springer, 13 AD3d 657, 658 [2004]; People v Mack, 6 AD3d 551 [2004]). The court declined to permitcross-examination as to certain convictions that were remote or had little bearing on thedefendant's credibility, and prohibited the prosecution from eliciting the underlying facts of theprior convictions about which it was permitted to impeach the defendant (see People vHayes, 97 NY2d 203, 208 [2002]; People v Springer, 13 AD3d at 658; People vMack, 6 AD3d at 551). The mere fact that some of the prior convictions were similar innature to the instant offenses did not warrant their preclusion (see People v Hayes, 97NY2d at 208; People v Springer, 13 AD3d at 658; People v Mack, 6 AD3d at551).
The defendant's contention regarding the prosecutor's summation comments is unpreservedfor appellate review (see CPL 470.05 [2]; People v McCants, 67 AD3d 821, 823 [2009]). In any event,although the defendant correctly contends that some of the prosecutor's comments impermissiblyshifted the burden of proof to the defendant (see People v Grant, 94 AD3d 1139, 1141 [2012]; People vMcCants, 67 AD3d at 823; People v Walters, 251 AD2d 433, 434 [1998]), this errorwas harmless, as the evidence of the defendant's guilt was overwhelming and there was noreasonable possibility that these comments might have contributed to the defendant's conviction(see People v Crimmins, 36 NY2d 230, 237-238 [1975]; People v Grant, 94AD3d at 1141; People v McCants, 67 AD3d at 823).[*2]
The defendant's contention, raised in his pro sesupplemental brief, that the evidence was legally insufficient to support the verdict, isunpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,491-492 [2008]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the factfinder's opportunity toview the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69NY2d 490, 495 [1987]). Upon reviewing the record here, 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's further contention, raised in his pro se supplemental brief, that his SixthAmendment right to confront witnesses was violated, is unpreserved for appellate review and, inany event, without merit (see People vBrown, 13 NY3d 332 [2009]; People v Rawlins, 10 NY3d 136, 158-160 [2008], cert deniedsub nom. Meekins v New York, 557 US 934, 129 S Ct 2856 [2009]; cf. Williams vIllinois, 567 US —, 132 S Ct 2221 [2012]; see generally Crawford vWashington, 541 US 36, 53-54 [2004]).
The defendant's contention, raised in his pro se supplemental brief, that the Supreme Courterred in charging the jury is similarly unpreserved for appellate review (see CPL 470.05[2]). In any event, the court properly charged the jury.
The defendant's claim, raised in his pro se supplemental brief, that he was deprived of theeffective assistance of counsel is based, in part, on matter appearing on the record and, in part, onmatter outside 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 562 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]). Skelos, J.P., Leventhal, Chambers and Lott, JJ., concur.