| People v Jones |
| 2013 NY Slip Op 02763 [105 AD3d 1059] |
| April 24, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jermal Jones, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J.Twersky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Gary, J.), rendered October 28, 2010, convicting him of rape in the first degree andburglary in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the People's contention, the defendant's assertion that the Supreme Courterred in failing to give a circumstantial evidence instruction is preserved for appellatereview (see CPL 470.05 [2]; People v Maddox, 92 AD3d 696 [2012]; cf. People v Gonzalez, 70AD3d 855 [2010]; People vReyes, 45 AD3d 785, 786 [2007]). Moreover, the evidence of the defendant'sidentity as the perpetrator of the rape and burglary, which included DNA evidence andhis own testimony placing him near the scene of the crimes around the time they werecommitted, was entirely circumstantial in nature (see People v Taylor, 6 AD3d 556, 557 [2004]; People v Dolan, 2 AD3d745, 746 [2003]; People v Lynch, 309 AD2d 878 [2003]), and, thus, thecourt should have given the circumstantial evidence instruction to the jury (seePeople v Sanchez, 61 NY2d 1022, 1023 [1984]; cf. People v Guidice, 83NY2d 630, 636 [1994]; People v Daddona, 81 NY2d 990, 992 [1993]).However, the error in omitting the circumstantial evidence instruction was harmless, asthere was overwhelming evidence of the defendant's guilt, and no significant probabilitythat the jury would have acquitted the defendant of the subject crimes if thecircumstantial evidence instruction had been given (see People v Brian, 84 NY2d887, 889 [1994]; People v Crimmins, 36 NY2d 230, 241-242 [1975]; Peoplev Maddox, 92 AD3d at 697; People v Gorham, 72 AD3d 1108, 1109-1110 [2010];People v Gonzalez, 70 AD3d at 855).
The defendant contends that he was deprived of the effective assistance of counseldue to his attorney's failure to move for the suppression of certain DNA evidence on thebasis that the DNA results were obtained in violation of Executive Law § 995-dand his constitutional right to be free from unreasonable searches and seizures. Althoughthe absence of such a motion is apparent on the face of the record, the defendant'sineffective assistance claim depends, in part, upon matter outside the record, includingthe scope of the DNA consent form which he signed during the course of an unrelatedcriminal investigation. This evidence will bear on the issue of whether the defendant'sattorney had a "strategic or other legitimate explanation[ ]" for his allegedly deficient[*2]conduct (People v Rivera, 71 NY2d 705, 709[1988]; see People vTaylor, 98 AD3d 593, 594 [2012], lv granted 20 NY3d 1065 [2013]).Since the defendant's claim of ineffective assistance of counsel is based, in part, onmatter appearing on the record and, in part, on matter outside the record, he has presenteda " 'mixed claim[ ]' of ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109 [2011], quotingPeople v Evans, 16 NY3d571, 575 n 2 [2011], cert denied 565 US —, 132 S Ct 325 [2011]). Inthis case, it is not evident from the matter appearing on the record that the defendant wasdeprived of the effective assistance of counsel (cf. People v Crump, 53 NY2d824 [1981]; People v Brown, 45 NY2d 852 [1978]). Since the defendant's claimof ineffective assistance cannot be resolved without reference to matter outside therecord, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in itsentirety (see People vFreeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at1109; People v Rohlehr, 87AD3d 603, 604 [2011]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Rivera, J.P., Dickerson, Leventhal and Hall, JJ., concur.