| People v Izurieta |
| 2014 NY Slip Op 02610 [116 AD3d 881] |
| April 16, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Paula Izurieta, Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County(Kelly, J.), rendered June 7, 2011, convicting her of burglary in second degree (twocounts), upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing, of that branch of the defendant's omnibus motion which was tosuppress her statements to law enforcement officials.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention that the evidence was legally insufficient tosupport her convictions of burglary in the second degree, viewing the evidence in thelight most favorable to the prosecution (see People v Contes, 60 NY2d 620[1983]), we find that it was legally sufficient to establish the defendant's guilt beyond areasonable doubt on those counts. 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 [2007]), we nevertheless accord great deference to the fact-finder's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that the prosecutor's comments during summationdeprived her of her right to a fair trial is unpreserved for appellate review (seeCPL 470.05 [2]). In any event, the prosecutor's comments did not deprive the defendantof a fair trial, as the challenged comments were a fair response to the defendant's attackon the credibility of the complainants, did not denigrate the defense, and were within thebounds of appropriate argument based on the evidence (see People v Galloway,54 NY2d 396, 399 [1981]; People v Ashwal, 39 NY2d 105, 109-110 [1976]).
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]). [*2]In this case, it is not evident from the matter appearing onthe record that the defendant was deprived of the effective assistance of counsel (see People v McBride, 103AD3d 920, 921 [2013]; People v Ropiza, 100 AD3d 935, 936 [2012]; cf.People v Crump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852[1978]). Since the defendant's claim of ineffective assistance of counsel cannot beresolved without reference to matter outside the record, a CPL 440.10 proceeding is theappropriate 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 sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions, including those raised in her pro sesupplemental brief, are without merit. Dillon, J.P., Chambers, Austin and Duffy, JJ.,concur.