| People v Boyce |
| 2014 NY Slip Op 04781 [118 AD3d 1016] |
| June 25, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Shawn Boyce, Appellant. |
Edward M. Gould, Islip, N.Y., for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Efman, J.), rendered April 19, 2010, convicting him of rape in the third degree andforcible touching, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's claim that the People violated their disclosure obligations pursuantto Brady v Maryland (373 US 83 [1963]) relies on factual assertions outside ofthe record and, thus, is not reviewable on direct appeal (see People v Krivoi, 81 AD3d978, 979 [2011]; People vHelenese, 75 AD3d 653 [2010]; People v Valdes, 66 AD3d 925 [2009]; People v Reyes, 60 AD3d873 [2009]).
In addition, to the extent that the defendant contends that he was deprived of theeffective assistance of counsel because his attorney rejected his request to testify on hisown behalf, his contention is based on matter dehors the record and is not reviewable ondirect appeal (see People vWashington, 71 AD3d 1064, 1065 [2010]; People v Krebs, 11 AD3d 713 [2004]; People vPozo, 285 AD2d 520 [2001]; People v Bennett, 284 AD2d 338 [2001];People v Santana, 279 AD2d 641 [2001]).
The defendant's contention that the prosecutor struck a juror on raciallydiscriminatory grounds is unpreserved for appellate review (see People v Ross, 83 AD3d741, 742 [2011]; People vLemay, 69 AD3d 757, 758 [2010]) and, in any event, is without merit (see People v Ortiz, 61 AD3d706 [2009]; People vQuito, 43 AD3d 411, 412 [2007]).
The defendant also failed to raise a timely challenge to the seating of Juror No. 5when the juror disclosed during voir dire that she had sued her boss for sexualharassment (see CPL 270.20 [1] [c]). Therefore, to the extent that the defendant'sclaim of juror bias arises out of matter appearing on the record, he waived such objection(see CPL 270.15 [4]; People v Ames, 96 AD3d 867 [2012]; People vSellers, 295 AD2d 629 [2002]; People ex rel. Green v La Vallee, 55 AD2d958 [1977]). To the extent that the defendant's claim is based on matter dehors therecord, it is not reviewable on direct appeal (see CPL 440.10; People v Kirk, 96 AD3d1354, 1359 [2012]; People v Kaplan, 223 AD2d 364 [1996]).
[*2] The defendant's contention that the Supreme Courtunfairly marshaled the evidence in its jury charge is unpreserved for appellate review (see People v Lawson, 22 AD3d602 [2005]) and, in any event, is without merit (see People v McManus, 208AD2d 866 [1994]; cf. People v Chambers, 73 AD2d 976 [1980]). Dillon, J.P.,Dickerson, Cohen and Duffy, JJ., concur.