| People v Coleman |
| 2015 NY Slip Op 01465 [125 AD3d 879] |
| February 18, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Anthony Coleman, Appellant. |
George M. Groglio, Port Chester, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Adrienne M. Chapoulie, LaurieSapakoff, and Steven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Zambelli, J.), rendered May 17, 2011, convicting him of criminal possession of aweapon in the second degree, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing, of that branch of the defendant's omnibusmotion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The County Court did not err in denying that branch of the defendant's omnibusmotion which was to suppress a gun found in a backpack thrown off of a landing by thedefendant. The police had an objective, credible reason to approach the group on thelanding, which included the defendant, to request information (see People v Riddick, 70 AD3d1421 [2010]). Before the police officers could ask any questions, an officer saw thedefendant throw a book bag over the railing, and when it landed, the officer saw thebarrel and part of the magazine of a gun protruding from the bag. In throwing the bag,the defendant engaged in an independent act involving a calculated risk that the weaponwould be retrieved (see People v Boodle, 47 NY2d 398, 404 [1979]). As thedefendant's abandonment of the property was not precipitated by any illegal policeconduct, the County Court properly declined to suppress the gun (see id.; People v Mack, 89 AD3d864, 865 [2011]; People vDavis, 78 AD3d 724, 725 [2010]; People v Ford, 82 AD2d 923, 924[1981]).
The County Court did not err in denying defense counsel's application to admit theout-of-court statement of an unavailable witness pursuant to the declaration against penalinterest exception to the hearsay rule (see generally People v Shabazz, 22 NY3d 896, 898[2013]). Contrary to the defendant's contention, the portion of the statement that wasagainst the declarant's penal interest was not relevant to the issues at trial and did notexculpate the defendant (seePeople v Burns, 6 NY3d 793, 794 [2006]; People v Negron, 117 AD3d 598 [2014]; People v Vincente, 4 AD3d217 [2004]).
The defendant's contention that he was deprived of his constitutional right to theeffective assistance of counsel is based, in part, on matter appearing on the record and, inpart, on matter outside the record and, thus, constitutes a "mixed claim of ineffectiveassistance" (People vMaxwell, 89 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d 571, 575 n 2 [2011]). In thiscase, it is not [*2]evident from the matter appearing onthe record that the defendant was deprived of the effective assistance of counsel (cf.People v Crump, 53 NY2d 824, 825 [1981]; People v Brown, 45 NY2d 852[1978]). Since the defendant's claim of ineffective assistance of counsel cannot beresolved without reference to matter outside the record, a CPL 440.10 proceeding is theappropriate forum for reviewing the claim in its entirety (see People v Freeman, 93AD3d 805 [2012]; People v Maxwell, 89 AD3d at 1109). Although thedefendant made a post-conviction motion to vacate the judgment pursuant to CPL article440, the issues raised in that motion are not properly before us, as he was denied leave toappeal from the denial of that motion (see People v DeLuca, 45 AD3d 777, People vRivas, 206 AD2d 549 [1994] [2007]).
The defendant's remaining contention is unpreserved for appellate review and, in anyevent, without merit (see People v Scott, 276 AD2d 371 [2000]). Leventhal, J.P.,Hall, Austin and Sgroi, JJ., concur.