| People v Morillo |
| 2013 NY Slip Op 01572 [104 AD3d 792] |
| March 13, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Luis Morillo, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Anne E. Oh of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Braslow, J.), rendered October 25, 2010, convicting him of burglary in the first degree,burglary in the second degree, criminal contempt in the second degree, attempted assaultin the third degree, and menacing in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is modified, on the law, by vacating the convictions ofburglary in the first degree and menacing in the second degree under counts one and fiveof the indictment, vacating the sentences imposed thereon, and dismissing those countsof the indictment; as so modified, the judgment is affirmed.
The evidence at trial established that the defendant broke through the door of thecomplainant's home and punched, "smacked," and pushed her. During the altercation, healso threatened her with a taser or stun gun. As the People correctly concede, theevidence that the defendant displayed a taser or stun gun was legally insufficient toestablish the "dangerous instrument" element of burglary in the first degree andmenacing in the second degree (Penal Law §§ 140.30 [3]; 120.14 [1]; see People v Hall, 18 NY3d122 [2011]; People v Maio Ni, 293 AD2d 552 [2002]). Accordingly, thoseconvictions must be reversed, the sentences imposed thereon vacated, and those countsof the indictment dismissed.
The defendant's contention that the evidence was not legally sufficient to support hisconvictions of burglary in the second degree, criminal contempt in the second degree,and attempted assault in the third degree is not preserved for appellate review(see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]). In anyevent, viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620 [1983]), we find that the evidence was legally sufficient toestablish his guilt of those offenses beyond a reasonable doubt. Moreover, upon ourindependent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilton those counts was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The federal constitution "forbids the use of visible shackles . . . ,unless that use is justified by an essential state interest . . . specificto the defendant on trial" (Deck v Missouri, 544 [*2]US 622, 624 [2005] [internal quotation marks omitted]).Here, the defendant was shackled throughout the trial and black bunting was drapedaround his table in the courtroom. However, because it appears from the record thatsimilar bunting was not draped around the prosecution's table, "we cannot conclude. . . that the jury, seeing the bunting around the defense table and not theprosecutor's, would not have inferred that it was there to hide shackles" (People v Cruz, 17 NY3d941, 944 [2011]). Since the County Court failed to articulate on the record anadequate justification individualized to the defendant for the shackling, we mustdetermine whether the error in permitting the shackling was harmless (see People v Clyde, 18 NY3d145, 148 [2011], cert denied 566 US —, 132 S Ct 1921 [2012]; People v Cruz, 17 NY3d941 [2011]). Applying that analysis, we conclude that the defendant is not entitled toa new trial since the evidence of the defendant's guilt of burglary in the second degree,criminal contempt in the second degree, and attempted assault in the third degree,without reference to the alleged error, was overwhelming, and there is no reasonablepossibility that the alleged error might have contributed to the defendant's conviction(see People v Crimmins, 36 NY2d 230, 237 [1975]; People v Glover, 96 AD3d777, 777-778 [2012]).
Evidence of two prior incidents of domestic violence between the defendant and thecomplainant was properly admitted as "relevant background material to enable the jury tounderstand the defendant's relationship with the complainant and explain the issuance ofan order of protection, and as evidence of the defendant's motive and intent in thecommission of the charged crimes" (People v Laverpool, 52 AD3d 622, 622 [2008]; see People v Mendez, 70AD3d 861 [2010]; People vHanson, 30 AD3d 537 [2006]; cf. People v Sayers, 64 AD3d 728, 732 [2009]).
Turning to the contentions raised in the defendant's pro se supplemental brief, wefind that the County Court providently exercised its discretion in denying the defendant'spostverdict motion for a substitution of assigned counsel (see People v Martin, 41 AD3d616, 616 [2007]; see alsoPeople v McClam, 60 AD3d 968, 969 [2009]). The defendant's claim that hewas deprived of the constitutional right to the effective assistance of counsel is based, inpart, on matter appearing on the record and, in part, on matter outside the record, andthus constitutes a " 'mixed claim[ ]' " of ineffective assistance (People v Maxwell, 89 AD3d1108, 1109 [2011], quoting People v Evans, 16 NY3d 571, 575 n 2 [2011], certdenied 565 US —, 132 S Ct 325 [2011]). In this case, it is not evident fromthe matter appearing on the record that the defendant was deprived of the effectiveassistance of counsel (cf. People v Crump, 53 NY2d 824 [1981]; People vBrown, 45 NY2d 852 [1978]). Since the defendant's claim of ineffective assistancecannot 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, 93AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d603, 604 [2011]). Mastro, J.P., Austin, Roman and Cohen, JJ., concur.