| People v Thomas |
| 2013 NY Slip Op 01434 [104 AD3d 710] |
| March 6, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Forrest Thomas, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Dutchess County(Marlow, J.), rendered March 18, 2009, as amended March 19, 2009, convicting him ofassault in the first degree (two counts), upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing (Hayes, J.), of that branch of thedefendant's omnibus motion which was to suppress identification evidence.
Ordered that the judgment, as amended, is affirmed.
The hearing court properly denied that branch of the defendant's omnibus motionwhich was to suppress identification evidence. The participants in the photo array weresufficiently similar to the defendant in appearance so that there was little likelihood thatthe defendant would be singled out for identification based on particular characteristics(see People v Brown, 89AD3d 1032 [2011]; Peoplev Ragunauth, 24 AD3d 472, 472 [2005]; People v Wright, 297 AD2d391, 391 [2002]; People v Williams, 289 AD2d 270, 270-271 [2001]).
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 prove thedefendant's guilt beyond a reasonable doubt. Moreover, upon our independent reviewpursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was not against theweight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
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]; see People v Jackson, 97AD3d 693, 694 [2012]). It is not evident from the matter appearing on the recordthat the defendant was deprived of the effective assistance of counsel (cf. People vCrump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]). Sincethe defendant's claim of ineffective assistance cannot be resolved without reference tomatter outside the record, a CPL 440.10 proceeding is the appropriate forum forreviewing the claim in its entirety (see People v [*2]Jackson, 97 AD3d at 694; People v Freeman, 93 AD3d805, 806 [2012]; People v Maxwell, 89 AD3d at 1109). Dillon, J.P.,Angiolillo, Leventhal and Sgroi, JJ., concur.