| People v Credle |
| 2015 NY Slip Op 00548 [124 AD3d 792] |
| January 21, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jasma Credle, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant, andappellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Sharon Y. Brodt, Mariana Zelig, Johnnette Traill, and Merri Turk Lasky of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lewis, J.), rendered March 9, 2012, convicting her of attempted murder in the seconddegree, assault in the second degree, criminal possession of a weapon in the seconddegree (two counts), and menacing in the second degree, upon a jury verdict, andimposing 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 establish thedefendant's guilt, beyond a reasonable doubt, of the crimes of which she was convicted.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, 410 [2004]; Peoplev Bleakley, 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]).
In response to evidence proffered by the People that the defendant relocated to amotel after the subject shooting, the defendant called as a witness an attorney whom shehad retained after the shooting. To rebut the People's theory that the relocation indicateda consciousness of guilt, the defendant elicited testimony from that attorney that thedefendant intended to surrender to the police, but that the police arrested her before shewas able to do so. During summation, the prosecutor posed the rhetorical question: "[I]fyou didn't do anything and you don't know that detectives are looking for you in respectto a shooting, why did you get an attorney?" The defendant correctly contends that thiscomment was improper, since the defendant's retention of an attorney was not probativeof her consciousness of guilt (cf. People v De George, 73 NY2d 614, 618-619[1989]; People v Conyers, 52 NY2d 454, 458-459 [1981]; People v Morrice, 61 AD3d1390, 1391 [2009]; People v Beers, 302 AD2d 898, 899 [2003]; People vNicholas, 286 AD2d 861, 862 [2001], affd 98 NY2d 749 [2002]; Peoplev McLean, 243 AD2d 756 [1997]). Nevertheless, contrary to the defendant'scontention, under the circumstances of this case, the error did not deprive the defendantof a fair trial and otherwise does not require reversal (see People v Beers, 302AD2d at 899).
The defendant challenges other remarks made by the prosecutor during summation,as well as certain questions posed by the prosecutor during the cross-examination of thedefendant's mother. However, none of the challenged remarks or questions, either singlyor cumulatively, deprived the defendant of a fair trial (see People v Wright, 62 AD3d916, 917-918 [2009]).
The defendant's contention, raised in her pro se supplemental brief, that she wasdeprived of the effective assistance of counsel is based, in part, on matter appearing onthe record and, in part, on matter outside the record and, thus, constitutes a "mixed claimof ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d571, 575 n 2 [2011]). In this case, it is not evident from the matter appearing on therecord that the defendant was deprived of the effective assistance of counsel (cf.People v Crump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852[1978]). Accordingly, a CPL 440.10 proceeding is the appropriate forum for reviewingthe claim in its entirety (seePeople v Freeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89AD3d at 1109). Rivera, J.P., Skelos, Roman and Miller, JJ., concur.