| People v Birot |
| 2012 NY Slip Op 06970 [99 AD3d 933] |
| October 17, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Matthew Birot, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Seth M. Lieberman,and Bruce Alderman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman, J.),rendered December 1, 2009, convicting him of gang assault in the first degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, ofthat branch of the defendant's omnibus motion which was to suppress identification evidence.
Ordered that the judgment is affirmed.
The hearing court properly denied that branch of the defendant's omnibus motion which wasto suppress identification evidence. The People established in the first instance that thephotographic identification procedure and lineup were not improper, and the defendant failed toestablish that the procedures were unduly suggestive (see People v Chipp, 75 NY2d 327,335-336 [1990], cert denied 498 US 833 [1990]; People v Seymour, 77 AD3d 976, 978 [2010]).
The Supreme Court properly denied the defendant's CPL 330.30 motion. The defendantfailed to establish that the People violated his rights under Brady v Maryland (373 US 83[1963]). To the extent that the defendant's factual assertions concerning the undisclosed materialwere based on matter outside the trial record, the Supreme Court properly declined to considerthem (see CPL 330.30 [1]; People v Wolf, 98 NY2d 105, 119 [2002]; People v Thomas, 71 AD3d 1061,1062 [2010]; People v Ai Jiang, 62AD3d 515 [2009]).
The defendant's contention that the prosecutor improperly vouched for the credibility of aneyewitness during summation is without merit. The challenged remarks were responsive todefense counsel's summation (seePeople v McCoy, 89 AD3d 1110, 1110 [2011]; People v Carey, 67 AD3d 925, 925 [2009]). The defendant'scontentions that he was deprived of a fair trial by certain other remarks made by the prosecutorduring summation are unpreserved for appellate review (see CPL 470.05 [2]; People v Romero, 7 NY3d 911,912 [2006]). In any event, the challenged remarks were either fair comment on the evidenceadduced at trial or responsive to defense counsel's summation (see People v Ashwal, 39NY2d 105, 109-110 [1976]).
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 matter[*2]outside the record, and thus constitutes 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 matterappearing on 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 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]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of gang assault in the first degree beyond a reasonable doubt. Moreover, infulfilling our responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied thatthe verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
"Since the defendant's guilt was proven beyond a reasonable doubt at trial, there can be noappellate review of the defendant's claim that the evidence presented to the grand jury was legallyinsufficient" (People v Bajana, 82AD3d 1111, 1112 [2011]; see CPL 210.30 [6]; People v Folkes, 43 AD3d 956, 957 [2007]).
The defendant's remaining contentions are without merit. Skelos, J.P., Leventhal, Lott andMiller, JJ., concur.