| People v Fornal |
| 2014 NY Slip Op 09147 [123 AD3d 1141] |
| December 31, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Robert S. Fornal, Jr., Appellant. |
Matthew Muraskin, Port Jefferson, N.Y., for appellant.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Cristin N. Connell and JosephMogelnicki of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Grella, J.), rendered July 11, 2013, convicting him of burglary in the second degree andcriminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establishbeyond a reasonable doubt the defendant's guilt of burglary in the second degree.Moreover, in fulfilling our responsibility to conduct an independent review of the weightof the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383 [2004]; People vBleakley, 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]).
Furthermore, the defendant's claim of ineffective assistance of counsel is based, inpart, on matter appearing on the record and, in part, on matter outside the record, andthus, constitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d1108, 1109 [2011]; seePeople v Taylor, 98 AD3d 593, 594 [2012], affd sub nom. People vHeidgen, 22 NY3d 259 [2013]). In this case, it is not evident from the matterappearing on the record that the defendant was deprived of the effective assistance ofcounsel (cf. People v Crump, 53 NY2d 824 [1981]; People v Brown, 45NY2d 852 [1978]). Because the defendant's claim of ineffective assistance cannot beresolved without reference to matter outside the record, a CPL 440.10 proceeding is theappropriate forum for reviewing the claim in its entirety (People v Taylor, 98AD3d at 594; see People vDelancey, 94 AD3d 1015 [2012]; People v Maxwell, 89 AD3d at1109).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contention is without merit. Skelos, J.P., Dickerson,Austin and Maltese, JJ., concur.