| People v Washington |
| 2013 NY Slip Op 05544 [108 AD3d 781] |
| July 31, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael Washington, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Anastasia Spanakos of counsel), for respondent.
Appeal by the defendant from a judgment of Supreme Court, Queens County (Lasak,J.), rendered July 28, 2008, convicting him of murder in the second degree, criminalpossession of a weapon in the second degree, criminal possession of a weapon in thethird degree, and tampering with physical evidence, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contentions, the prosecutor's summation commentsconstituted fair comment on the evidence (see People v Ashwal, 39 NY2d 105[1976]; People v Gouveia,88 AD3d 814 [2011]) or a fair response to arguments and theories presented in thedefense's summation (see People v Galloway, 54 NY2d 396 [1981]; People v Gouveia, 88 AD3d814 [2011]; People vCrawford, 54 AD3d 961 [2008]), or were harmless, as the evidence of thedefendant's guilt was overwhelming, and there is no significant probability that theallegedly improper comments contributed to the defendant's conviction (see People vCrimmins, 36 NY2d 230, 241-242 [1975]; People v Hill, 286 AD2d 777,778 [2001]).
The defendant's further contention that he was deprived of the effective assistance ofcounsel is based, in part, on matter appearing on the record and, in part, on matter outsidethe record, and thus 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]). Dillon, J.P., Dickerson, Austin and Miller, JJ., concur.