| People v Byrd |
| 2014 NY Slip Op 02604 [116 AD3d 875] |
| April 16, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Cory Byrd, Appellant. |
—[*1] David M. Hoovler, District Attorney, Middletown, N.Y. (Andrew R. Kass ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County(Berry, J.), rendered March 8, 2012, convicting him of murder in the second degree andtampering with physical evidence (two counts), upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
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, beyonda reasonable doubt, the defendant's guilt of the crimes of murder in the second degree(Penal Law § 125.25 [2]) and two counts of tampering with physical evidence(Penal Law § 215.40 [2]). Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342, 348 [2007]), we nevertheless accord great deference to the jury's opportunity toview the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383 [2004], cert denied 542 US 946 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we find thatthe verdict of guilt as to those crimes was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The County Court did not improvidently exercise its discretion in admitting intoevidence 17 autopsy photographs of the victim. The challenged photographs were neitherexcessively gruesome nor introduced for the sole purpose of arousing the jurors' passionsand prejudicing the defendant (see People v Wood, 79 NY2d 958, 960 [1992];People v Pobliner, 32 NY2d 356, 369-370 [1973], cert denied 416 US905 [1974]; People vHarrington, 88 AD3d 817 [2011]; People v Fletcher, 84 AD3d 1265, 1266 [2011]). Rather,they were relevant to a material issue at trial and also to elucidate the testimony of themedical examiner regarding the cause of death (see People v Harrington, 88 AD3d 817 [2011]; People v Prowse, 60 AD3d703, 704 [2009]; People vAllan, 41 AD3d 727, 727-728 [2007]).
The defendant's contention that he was deprived of the effective assistance ofcounsel is based, in part, upon matters outside the record. Such matters will bear on theissue of whether defense counsel had a "strategic or other legitimate explanation[]" forhis failure to cross-examine certain witnesses and his allegedly insufficientcross-examination of certain other witnesses (People v Rivera, 71 NY2d 705,709 [1988]; see People vTaylor, 98 AD3d 593, 594 [2012], affd 22 NY3d 259 [2013]). Thus, thedefendant has presented 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]). Because the defendant's claim ofineffective assistance of counsel cannot be resolved without reference to matters outsidethe record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim inits entirety (see People vFreeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at1109; People v Rohlehr, 87AD3d 603, 604 [2011]).
The defendant's contention that the County Court improperly denied his motion for amistrial, which motion was based upon evidence improperly admitted under the court'sMolineux ruling (see People v Molineux, 168 NY 264 [1901]), iswithout merit, as the court struck this evidence from the record and gave an effectivecurative charge to the jury.
The defendant's contentions that he was deprived of a fair trial by certain remarksmade by the prosecutor during summation, that the County Court exhibited bias insentencing him as a persistent felony offender, and that it improperly sentenced him tothe maximum allowable sentence upon information which was not reliable and accuratein violation of People v Naranjo (89 NY2d 1047, 1049 [1997]) are unpreservedfor appellate review, and we decline to review these issues pursuant to our interest ofjustice jurisdiction. Mastro, J.P., Lott, Austin and Roman, JJ., concur.