| People v Zappulla |
| 2013 NY Slip Op 00948 [103 AD3d 759] |
| February 13, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Guy Zappulla, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and CamilleO'Hara Gillespie of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Dowling, J.), rendered July 21, 2008, convicting him of murder in the second degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Under the facts of this case, the Supreme Court did not err in denying, without ahearing, the defendant's motion to suppress evidence of certain statements which heallegedly made to his former girlfriend on the ground that she was acting as an agent ofthe police. The defendant's contention that the admission of certain evidence violated hisconstitutional right to confrontation is unpreserved for appellate review (see CPL470.05 [2]; People v Gray, 86 NY2d 10, 21 [1995]), and we decline to reach it inthe exercise of our interest of justice jurisdiction.
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, onmatter outside the record and, thus, constitutes a " 'mixed-claim[ ]' " of ineffectiveassistance (People vMaxwell, 89 AD3d 1108, 1109 [2011], quoting People v Evans, 16 NY3d571, 575 n 2 [2011], cert denied 565 US —, 132 S Ct 325 [2011]). Itis not evident from the matter appearing on the record that the defendant was deprived ofthe effective assistance of counsel (cf. People v Crump, 53 NY2d 824 [1981];People v Brown, 45 NY2d 852 [1978]). Since the defendant's claim ofineffective assistance cannot be resolved without reference to matter outside the record, aCPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety(see People v Freeman, 93AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d603, 604 [2011]).
The defendant's contention raised in Point I of his pro se supplemental brief isunpreserved for appellate review, and we decline to review it in the exercise of ourinterest of justice jurisdiction. The defendant's contentions raised in Points II and V ofhis pro se supplemental brief are not properly before this Court, since they are basedupon matter dehors the record. The defendant's remaining contentions are without merit.Rivera, J.P., Hall, Roman and Miller, JJ., concur.