| People v Mallayev |
| 2014 NY Slip Op 06213 [120 AD3d 1358] |
| September 17, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Mikhail Mallayev, Appellant. |
Tehilah H. Berman, Brooklyn, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Robert J. Masters, BradA. Leventhal, and Donna Aldea of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Hanophy, J.), rendered April 21, 2009, convicting him of murder in the first degree,conspiracy in the second degree, and criminal possession of a weapon in the seconddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the indictment was not jurisdictionallydefective (see People v Iannone, 45 NY2d 589, 598 [1978]; People vLakomec, 86 AD2d 77, 79 [1982]). In light of our determination with respect to thisissue, the defendant's contentions regarding the lack of a valid felony complaint havebeen rendered academic (see People v Smith, 304 AD2d 677, 678 [2003]).
Contrary to the defendant's contention, since he did not demonstrate the necessity forthe appointment of an expert in eyewitness identification on his behalf pursuant toCounty Law § 722-c, the Supreme Court providently exercised itsdiscretion in denying his request to appoint such an expert (see People v Wilson, 107AD3d 919, 920 [2013]; People v Robinson, 70 AD3d 728, 728 [2010]; People vMoore, 125 AD2d 501, 502 [1986]). The defendant's contention that the denial ofhis request deprived him of due process of law is unpreserved for appellate review(see CPL 470.05 [2]; People v Bunge, 70 AD3d 710, 710-711 [2010]) and, inany event, without merit (seePeople v Young, 7 NY3d 40, 46 [2006]; People v Lee, 96 NY2d 157,163 [2001]; People vLinton, 94 AD3d 962, 963 [2012]; cf. People v Santiago, 17 NY3d 661, 671-672 [2011]; People v Abney, 13 NY3d251, 268 [2009]; People vLeGrand, 8 NY3d 449, 457 [2007]).
The defendant's contentions that the admission into evidence of certain fingerprintcards violated his constitutional rights to confront witnesses against him and to a fair trialare unpreserved for appellate review (see CPL 470.05 [2]) and, in any event,without merit (see People vRawlins, 10 NY3d 136, 158-160 [2008]; People v Jackson, 108 AD3d 1079, 1080 [2013];People v Gonsa, 220 AD2d 27, 30 [1996]). The defendant's contention that hisfingerprints were illegally seized in violation of the Fourth Amendment to the UnitedStates Constitution also is unpreserved for appellate review (see CPL 470.05 [2];People v Jackson, 105AD3d 866, 867-868 [2013]) and, in any event, not supported by the record.
The defendant's contention that, during summation, the prosecutor impermissibly[*2]vouched for certain prosecution witnesses is withoutmerit. The defendant's contention that certain other comments made by the prosecutorduring summation deprived him of a fair trial is unpreserved for appellate review(see CPL 470.05 [2]; People v Malave, 7 AD3d 542, 542 [2004]) and, in anyevent, without merit (see Peoplev Hutchinson, 106 AD3d 1105, 1105 [2013]; People v McHarris, 297AD2d 824, 825 [2002]; People v Evans, 291 AD2d 569, 569 [2002]; People vClark, 222 AD2d 446, 447 [1995]).
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]). In thiscase, 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 of counsel cannot be resolved without reference to matteroutside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing theclaim in its entirety (see Peoplev Freeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at1109; People v Rohlehr, 87AD3d 603, 604 [2011]).
The defendant's contentions that his conviction should be vacated, based upon thePeople's failure to produce certain evidence for his inspection, that the People destroyedcertain latent fingerprints, and that the People violated his due process rights underBrady v Maryland (373 US 83 [1963]), by failing to turn over an allegedeyewitness account, are all based upon matter dehors the record, and cannot be reviewedon direct appeal (see People vModesto, 39 AD3d 567, 567 [2007]; People v Rivera, 33 AD3d 942, 942 [2006]).
The defendant's remaining contentions are without merit. Dickerson, J.P., Leventhal,Hall and Miller, JJ., concur.