| People v Wilson |
| 2014 NY Slip Op 09033 [123 AD3d 626] |
| December 30, 2014 |
| Appellate Division, First Department |
[*1]
|  The People of the State of New York,Respondent, v Jamal Wilson, Appellant. |
Steven Banks, The Legal Aid Society, New York (E. Deronn Bowen of counsel), forappellant.
Jamal Wilson, appellant pro se.
Robert T, Johnson, District Attorney, Bronx (Justin J. Braun of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered December20, 2007, convicting defendant, after a jury trial, of murder in the second degree andcriminal possession of a weapon in the second degree, and sentencing him, as a secondviolent felony offender, to an aggregate term of 25 years to life, and order, same courtand Justice, entered on or about March 8, 2010, which denied defendant's motion tovacate the judgment, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007&rsqb). There is no basis for disturbingthe jury's credibility determinations. There was extensive evidence of defendant's guilt,including eyewitness testimony and the presence of the victim's blood on defendant'sclothing.
Defendant did not preserve his challenge to a witness's testimony that fear was thecause of her long delay in revealing that she was able to identify defendant, and wedecline to review it in the interest of justice. As an alternative holding, we also reject iton the merits. "It was necessary and proper for the District Attorney to elicit the reason inthe witness' mind for [her] conduct" (People v Buchalter,289 NY 181, 202 [1942] see also People v Howard, 7 AD3d 314 [1stDept 2004&rsqb, lv denied 3 NY3d 675 [2004]People v Wortherly, 68 AD2d 158, 163-164 [1st Dept1979&rsqb). The witness expressed only a generalized fear, and there was noimplied connection to defendant. There is no merit to defendant's arguments that thistestimony constituted either improper "bolstering," or impeachment by the People of theirown witness. Even if a limiting instruction might have been appropriate, defendant madeno such request, and he may have had strategic reasons to avoid highlighting thisevidence.
Defendant's challenges to the People's summation, and his claim that the MedicalExaminer's testimony violated his right of confrontation, are unpreserved and we declineto review them in the interest of justice. As an alternative holding, we find no basis forreversal.
The court properly denied defendant's CPL 440.10 motion, which raisedrecord-based evidentiary issues, as procedurally defective.
Defendant's pro se claim that his counsel rendered ineffective assistance isunreviewable on direct appeal because it involves matters not reflected in, or fullyexplained by, the record concerning counsel's decisions (see People v Rivera, 71NY2d 705, 709 [1988&rsqb). Since the CPL 440.10 motion raisedentirely different issues, the merits of the ineffectiveness claim may not be addressed onthis appeal. In the alternative, to the extent the existing record permits review, we findthat defendant received effective assistance under the state and federal standards (seePeople v Benevento, 91 NY2d 708, 713-714 [1998]Strickland v Washington, 466 US 668[1984&rsqb).
[*2][*3] Defendant's remaining pro se claim is waived andunpreserved, and we decline to review it in the interest of justice. As an alternativeholding, we reject it on the merits. Concur—Sweeny, J.P., Andrias, Saxe,DeGrasse and Gische, JJ.