| People v Barton |
| 2013 NY Slip Op 07052 [110 AD3d 1089] |
| October 30, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Larry Barton, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kron, J.), rendered October 16, 2009, convicting him of attempted aggravated murder(three counts), assault in the second degree (three counts), criminal possession of aweapon in the third degree, and criminal possession of stolen property in the fourthdegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconvictions of three counts of attempted aggravated murder and three counts of assault inthe second degree is unpreserved for appellate review (see CPL 470.05; People v Hawkins, 11 NY3d484, 491-492 [2008]). In any event, viewing the evidence in the light most favorableto the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that itwas legally sufficient to establish the defendant's guilt as to these crimes beyond areasonable doubt. Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt as to these crimes was not against the weight of theevidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant's challenge to the Supreme Court's Sandoval ruling (seePeople v Sandoval, 34 NY2d 371 [1974]) is only partially preserved for appellatereview (see CPL 470.05 [2]). In any event, the court providently exercised itsdiscretion in fashioning its Sandoval ruling. The court struck an appropriatebalance between the probative value of the defendant's prior crimes on the issue of hiscredibility and the potential prejudice to the defendant (see People v Williams, 56NY2d 236, 238-239 [1982]; People v Thompson, 99 AD3d 819, 819 [2012]; People v Ortiz, 95 AD3d1140, 1141 [2012]). The mere fact that some of the prior convictions were similar innature to the crimes charged did not warrant their preclusion (see People v Smith, 18 NY3d588, 594 [2012]; People v Hayes, 97 NY2d 203, 208 [2002]; [*2]People v Thompson, 99 AD3d at 819).
The defendant's contention that he was deprived of a fair trial by various remarksmade by the prosecutor during summation is unpreserved for appellate review, as thedefendant either made no objection, or made only a general objection, or made anobjection for the first time in his postsummations motion for a mistrial, or madeobjections that were sustained without any further request for curative instructions andwere not the basis of his motion for a mistrial (see CPL 470.05 [2]; People v Romero, 7 NY3d911, 912 [2006]; People vHanson, 100 AD3d 771, 772 [2012]; People v Read, 97 AD3d 702, 703 [2012]; People v Parker-Davidson, 89AD3d 1114 [2011]). In any event, most of the challenged remarks were properbecause they were within the broad bounds of rhetorical comment permissible in closingarguments, constituted a fair response to arguments made by defense counsel insummation, or constituted fair comment on the evidence (see People v Halm, 81NY2d 819, 821 [1993]; People v Galloway, 54 NY2d 396, 399 [1981];People v Ashwal, 39 NY2d 105, 109-110 [1976]; People v Hanson, 100AD3d at 772). To the extent that some of the comments were improper, they weresufficiently addressed by the Supreme Court's instructions to the jury (see People v Hines, 102 AD3d889, 890 [2013]; People v Evans, 291 AD2d 569, 569 [2002]; People vBrown, 272 AD2d 338, 339 [2000]), or were harmless in light of the overwhelmingevidence of the defendant's guilt and since there was no significant probability that theerrors might have contributed to the defendant's convictions (see People vCrimmins, 36 NY2d 230, 241-242 [1975]; People v Hanson, 100 AD3d at772).
Since the defendant's guilt was proven beyond a reasonable doubt at trial, there canbe no appellate review of the defendant's claim, raised in his pro se supplemental brief,that the evidence presented to the grand jury was legally insufficient (see CPL210.30 [6]; People vBajana, 82 AD3d 1111, 1112 [2011]; People v Folkes, 43 AD3d 956, 957 [2007]).
The defendant's contention, raised in his pro se supplemental brief, that all of theidentification testimony of the prosecution's witnesses should have been precluded due tothe People's failure to serve notice pursuant to CPL 710.30 is only partially preserved forappellate review (see CPL 470.05 [2]) and, in any event, is without merit (seePeople v Gissendanner, 48 NY2d 543, 552 [1979]; People v Williams, 81 AD3d861, 862 [2011]; People vAlvarenga, 25 AD3d 560, 561 [2006]; People v Southerland, 288 AD2d497, 497-498 [2001]; People v Bello, 219 AD2d 657, 658 [1995]).
The defendant's claim, raised in his pro se supplemental brief, that he was deprivedof the effective assistance of counsel, is based, in part, on matter appearing on the recordand, in part, 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 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 vThomas, 104 AD3d 710, 711 [2013]; People v Freeman, 93 AD3d 805, 806 [2012]; People vMaxwell, 89 AD3d at 1109).
Contrary to the contention raised in the defendant's pro se supplemental brief, thesentence imposed was not illegal.
The defendant's remaining contentions raised in his pro se supplemental brief areunpreserved for appellate review and, in any event, without merit. Dillon, J.P.,Dickerson, Hall and Austin, JJ., concur.