| People v Breazil |
| 2013 NY Slip Op 06702 [110 AD3d 913] |
| October 16, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Terrance Breazil, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and AnnBordley of counsel), for respondent.
Appeal by the defendant from a judgment of Supreme Court, Kings County (J.Goldberg, J.), rendered November 17, 2009, convicting him of murder in the seconddegree, attempted murder in the second degree, and criminal possession of a weapon inthe second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention, raised in his pro se supplemental brief, that the pretriallineup identification should have been suppressed as the fruit of an illegal arrest, waspreviously rejected by this Court on a prior appeal (see People v Breazil, 52 AD3d 523 [2008]). Thatdetermination "constitutes the law of the case, and, absent a showing of manifest error inthe prior decision or that exceptional circumstances exist warranting departure from thelaw of the case doctrine, the defendant is precluded from having this issue reconsidered"(People v Martinez, 194 AD2d 741, 741-742 [1993] [internal quotation marksomitted]; see People vBoone, 84 AD3d 1108, 1109 [2011]; People v Riley, 22 AD3d 609, 610 [2005]). Under thecircumstances presented here, there is no basis to reconsider that issue.
Contrary to the defendant's contention, the court properly determined, after aSirois hearing (see People v Sirois, 92 AD2d 618 [1983]; see alsoMatter of Holtzman v Hellenbrand, 92 AD2d 405 [1983]), that the testimony of awitness given at the first trial was admissible on the People's case-in-chief at the secondtrial. The People established, by clear and convincing evidence, that the witness wasunavailable and that the unavailability was procured by misconduct on the part of thedefendant (see People v Geraci, 85 NY2d 359, 365-366 [1995]; People v Dubarry, 107 AD3d822 [2013]; People vRoacher, 39 AD3d 569 [2007]).
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 of murder [*2]in the second degree,attempted murder in the second degree, and criminal possession of a weapon in thesecond degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342, 348 [2007]), we accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69NY2d 490, 495 [1987]). Upon reviewing the record here, we find that the verdict of guiltwas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
There is no merit to the defendant's contention that he was deprived of a fair trialbecause a readback of certain testimony to the jury mistakenly included hearsaytestimony that had been stricken by the trial court. The court quickly discovered the errorand gave a curative instruction to the jury that it was not to consider the testimony, andthe jury is presumed to have followed the court's instruction (see People v O'Neal, 38 AD3d1305 [2007]; People vIannone, 2 AD3d 1283, 1284 [2003]). In any event, the error was harmless, asthe evidence of the defendant's guilt was overwhelming, and there was no significantprobability that the error contributed to the defendant's conviction (see People v Jackson, 8 NY3d869, 871 [2007]; People v Crimmins, 36 NY2d 230 [1975]).
The defendant's 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 assistanceof counsel cannot be resolved without reference to matter outside the record, a CPL440.10 proceeding 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]).
The defendant waived his contentions, raised in his pro se supplemental brief, that hewas deprived of his right to be present at a hearing on the admissibility into evidence ofcertain prison telephone records, and that the prosecution failed to lay a properfoundation for the admission of those records into evidence. The defendant's remainingcontentions, raised in his pro se supplemental brief, are unpreserved for appellate review(see CPL 470.05 [2]) and, in any event, are without merit. Skelos, J.P., Hall,Cohen and Hinds-Radix, JJ., concur.