| People v Shaw |
| 2015 NY Slip Op 02510 [126 AD3d 1016] |
| March 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ronald Shaw, Appellant. |
Dennis Claus, Syracuse, N.Y., for appellant, and appellant pro se.
David M. Hoovler, District Attorney, Middletown, N.Y. (Andrew R. Kass ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered October 9, 2008, convicting him of rape in the first degree (threecounts), sexual abuse in the first degree, and assault in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that he was deprived of his constitutional right to presenta complete defense by the Supreme Court's application of the Rape Shield Law (CPL60.42) to exclude evidence of unidentified semen found on the complainant's underwearis unpreserved for appellate review (see CPL 470.05 [2]; People v Simmons, 106 AD3d1115, 1116 [2013]). In any event, the defendant's right to present a defense was notunduly curtailed by the court's application of the Rape Shield Law (see People vSimmons, 106 AD3d at 1116; People v Weinberg, 75 AD3d 612, 613 [2010]).
The defendant's contention that he was deprived of a fair trial by being compelled toappear before a panel of prospective jurors in his prison garb is unpreserved for appellatereview and, in any event, without merit (see CPL 470.05 [2]; Estelle vWilliams, 425 US 501, 512-513 [1976]; People v Bullock, 28 AD3d 673, 673 [2006]).
The defendant's challenge to the legal sufficiency of the evidence, raised in his pro sesupplemental brief, is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492 [2008]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that itwas legally sufficient to establish the defendant's guilt beyond a reasonable doubt.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, 348 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Contrary to thedefendant's contention in his pro se supplemental brief, upon reviewing the record here,we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
[*2] The defendant'scontention, raised in his pro se supplemental brief, that he was deprived of the effectiveassistance of counsel is based, in part, on matter appearing on the record and, in part, onmatter outside the record and, thus, constitutes a "mixed claim" of ineffective assistance(People v Maxwell, 89AD3d 1108, 1109 [2011]). In this case, it is not evident from the matter appearingon the record that the defendant was deprived of the effective assistance of counsel(cf. People v Crump, 53 NY2d 824, 825 [1981]; People v Brown, 45NY2d 852, 853-854 [1978]). Since the defendant's claim of ineffective assistance ofcounsel cannot be resolved without reference to matter outside the record, a CPL 440.10proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Freeman, 93AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contention is improperly raised for the first time in hisreply brief (see People vWinkfield, 90 AD3d 959, 960 [2011]). Balkin, J.P., Roman, Sgroi and LaSalle,JJ., concur.