| People v Addison |
| 2013 NY Slip Op 04015 [107 AD3d 730] |
| June 5, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Teshena Addison, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and SolomonNeubort of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Mangano, Jr., J.), rendered July 29, 2011, convicting her of assault in the second degreeand criminal possession of a weapon in the fourth degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant's challenge to the admission into evidence of three surveillancevideotape recordings is without merit. Upon our review of the record, including thechallenged recordings, we conclude that the Supreme Court did not improvidentlyexercise its discretion in admitting them into evidence (see generally People vPatterson, 93 NY2d 80, 84 [1999]; People v Griffin, 98 AD3d 688, 689 [2012]). Thedefendant's claim that the equipment used to play the videotape recordings for the juryproduced an indistinct image involves matter dehors the record and, therefore, may notbe reviewed on direct appeal (see People v Ramos, 61 AD3d 783, 784 [2009]; People v Tetrault, 53 AD3d558, 560 [2008]).
Contrary to the defendant's contention, the Supreme Court providently exercised itsdiscretion in admitting rebuttal evidence of a prior bad act allegedly committed by thedefendant against the complainant in late 2007. This evidence was relevant to thedefendant's motive, provided background information on the nature of the relationshipbetween the defendant and the complainant, and refuted the defendant's claims regardingthe nature of their interactions leading up to the alleged crime at issue (see People v Gamble, 18NY3d 386, 397-398 [2012]; People v Delancey, 94 AD3d 1015, 1016 [2012]; seegenerally People v Blair, 90 NY2d 1003, 1004-1005 [1997]). The probative value ofsuch evidence outweighed any prejudice to the defendant, particularly in light of theSupreme Court's instructions to the jury regarding use of this evidence (see People vDelancey, 94 AD3d at 1016; People v Rock, 65 AD3d 558, 558 [2009]).
The Supreme Court nevertheless improvidently exercised its discretion in permittingthe admission of evidence relating to two bad acts allegedly committed by the defendantsubsequent to the charged crime, since the probative value of such evidence wasminimal, and was outweighed by its prejudicial effect (see People v Bell, 217AD2d 585, 586 [1995]). However, this error was harmless, [*2]as there was overwhelming evidence of the defendant'sguilt and no significant probability that this error contributed to her conviction (see People v Daniels, 103AD3d 807 [2013]; People vWalker, 84 AD3d 842, 843 [2011]). Under the circumstances of this case, theprejudicial effect of the evidence of the two subsequent bad acts "could not have addedmuch to the effect of the evidence properly admitted" (People v Arafet, 13 NY3d460, 468 [2009]).
The defendant's contentions that the Supreme Court's failure to instruct the jury withan alibi charge and a one-witness identification charge deprived her of a fair trial andconstituted reversible error are unpreserved for appellate review (see CPL 470.05[2]; People v Cox, 54AD3d 684, 685 [2008]), and we decline to review them in the exercise of ourinterest of justice jurisdiction (see People v Jones, 103 AD3d 753 [2013]; People v Herrera, 99 AD3d813, 813 [2012]).
The defendant's claim that she was deprived of the constitutional right to theeffective assistance of counsel is based, in part, on matter appearing on the record and, inpart, on matter outside the record and, thus, constitutes a " 'mixed claim[ ]' " ofineffective assistance (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]). 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 of counsel cannot be resolved without reference to matteroutside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing theclaim in its entirety (see Peoplev Freeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at1109; People v Rohlehr, 87AD3d 603, 604 [2011]). Mastro, J.P., Leventhal, Sgroi and Miller, JJ., concur.