| People v Whitecloud |
| 2013 NY Slip Op 06996 [110 AD3d 626] |
| October 29, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Rene Whitecloud, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Susan Gliner of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), renderedJanuary 13, 1995, convicting defendant, after a jury trial, of murder in the second degree,attempted murder in the second degree (two counts) and criminal possession of a weaponin the second degree, and sentencing him to an aggregate term of 41
Defendant did not preserve his argument that the court's jury instruction on thetheory of transferred intent (see People v Fernandez, 88 NY2d 777, 781-782[1996]) constructively amended an indictment only charging direct intent to kill threenamed persons. This is a claim requiring preservation (People v Duncan, 46NY2d 74, 80 [1978], cert denied 442 US 910 [1979]; People vHernandez, 273 AD2d 176 [1st Dept 2000], lv denied 95 NY2d 890 [2000];People v Udzinski, 146 AD2d 245 [2d Dept 1989], lv denied 74 NY2d853 [1989]; see also People v Ford, 62 NY2d 275 [1984]), and we decline toreview it in the interest of justice. As an alternative holding, we find no basis forreversal. There is no reasonable possibility that the jury convicted defendant, on anycount, on a transferred intent theory (see People v Grega, 72 NY2d 489, 496[1988]). The proof and arguments presented by the People at trial did not vary from theallegations of the indictment, and there was no evidence to support a transferred intenttheory. Furthermore, defendant only contested the element of identity and raised noissues regarding intent. Contrary to defendant's argument, the nature of the defense ishighly relevant to the issue of prejudice here, because it tends to minimize the possibilitythat the jury convicted defendant on an improper theory (see e.g. People vBuanno, 296 AD2d 600, 601 [3d Dept 2002], lv denied 98 NY2d 695[2002]).
Defendant did not preserve his argument that the court improperly participated in theexamination of witnesses (see People v Charleston, 56 NY2d 886, 887-888[1982]), and we decline to review it in the interest of justice. As an alternative holding,we find no basis for reversal. The court did not take on either the function or appearanceof an advocate or suggest to the jury that it had any opinion. To the extent that any of thecourt's interventions were inappropriate, they were not so egregious as to affect theverdict or deprive defendant of a fair trial (see People v Arnold, 98 NY2d 63, 67[2002]; People v Moulton, 43 NY2d 944 [1978]), particularly in light of thecourt's jury charge. Furthermore, there was overwhelming evidence of guilt.[*2]
Defendant's ineffective assistance of counselclaims are unreviewable on direct appeal because they involve matters not fullyexplained by the record (see People v Rivera, 71 NY2d 705, 709 [1988];People v Love, 57 NY2d 998 [1982]). Accordingly, since defendant has notmade a CPL 440.10 motion, the merits of his claim may not be addressed on appeal. Inthe alternative, to the extent the existing record permits review, we find that defendantreceived effective assistance under the state and federal standards (see People vBenevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466US 668 [1984]). Defendant has not shown that any of counsel's alleged deficiencies fellbelow an objective standard of reasonableness, or that, viewed individually orcollectively, they deprived defendant of a fair trial or affected the outcome of the case.
We perceive no basis for reducing the sentence. Concur—Friedman, J.P.,Sweeny, Acosta and Manzanet-Daniels, JJ.
Motion to enlarge record granted.