| People v Smith |
| 2014 NY Slip Op 07771 [122 AD3d 456] |
| November 13, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Charles Smith, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Claudia B. Flores ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), forrespondent.
Judgment, Supreme Court, New York County (Cassandra M. Mullen, J.), renderedDecember 7, 2011, convicting defendant, after a jury trial, of resisting arrest, andsentencing him to a term of three months, and judgment, same court (DanielMcCullough, J.), rendered August 14, 2012, convicting defendant, after a jury trial, ofcriminal sale of a controlled substance in the third degree, and sentencing him, as asecond drug felony offender, to a term of two years, unanimously affirmed.
At defendant's first trial, where he was convicted of resisting arrest but the jury failedto reach a verdict as to the remaining charges, the court properly exercised its discretionin limiting cross-examination of police witnesses. Although defendant was entitled,assuming good faith, to ask the officers about acts of misconduct bearing on theircredibility, the proposed line of questioning went into accusations, subsequent remedialchanges in police procedures, and other irrelevant or collateral matters (see People v Ducret, 95 AD3d636 [1st Dept 2012], lv denied 19 NY3d 996 [2012]). In particular, to theextent defendant is arguing that he was entitled to elicit the fact that lawsuits involvingthese officers were settled by the City of New York, and the dollar amounts of thosesettlements, that argument is without merit (see Bigelow-Sanford v SpecializedCommercial Floors of Rochester, 77 AD2d 464 [4th Dept 1980]). The record fails tosupport defendant's assertion that the court prevented him from making a full offer ofproof.
At the second trial, the court properly declined to deliver either a circumstantialevidence or "two inference" charge. The People's case was not based entirely oncircumstantial evidence, notwithstanding the fact that the jury was called upon to drawcertain inferences from the evidence (see People v Roldan, 88 NY2d 826 [1996];People v Daddona, 81 NY2d 990 [1993]). Defendant's claims relating to thetimeliness of certain charges given by the court at the second trial are unpreserved andwe decline to review them in the interest of justice. As an alternative holding, we findthat defendant has not established that he was prejudiced by the timing of thesecharges.
Defendant's claim that his counsel rendered ineffective assistance at the second trialis unreviewable on direct appeal because it involves matters not reflected in, or fullyexplained by, [*2]the record concerning counsel'sdecisions as to the introduction of evidence (see People v Rivera, 71 NY2d 705,709 [1988]; People v Love, 57 NY2d 998 [1982]). Accordingly, since defendanthas not made a CPL 440.10 motion, the merits of the ineffectiveness claim may not beaddressed on appeal. In the alternative, to the extent the existing record permits review,we find that defendant received effective assistance under the state and federal standards(see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland vWashington, 466 US 668 [1984]). Defendant has not shown that his counsel's failureto offer evidence relating to lawsuits against the officers, or evidence of the content ofdefendant's own statements, fell below an objective standard of reasonableness, or that,viewed individually or collectively, they deprived defendant of a fair trial or affected theoutcome of the case. Concur—Mazzarelli, J.P., Sweeny, Moskowitz, Richter andFeinman, JJ.