| People v Justice |
| 2015 NY Slip Op 02787 [127 AD3d 786] |
| April 1, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Allah Justice, Appellant. |
Marianne Karas, Thornwood, N.Y., for appellant.
Madeline Singas, Acting District Attorney, Mineola, N.Y. (Tammy J. Smiley, RobertA. Schwartz, Ezra E. Zonana, and Joseph Mogelnicki of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Robbins, J.), rendered December 11, 2012, convicting him of assault in the seconddegree and criminal possession of a weapon in the third degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing pursuantto a stipulation in lieu of motions (Berkowitz, J.), of the suppression of identificationtestimony.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the complaining witness's viewing of asurveillance video of the assault did not constitute an identification procedure (seePeople v Gee, 99 NY2d 158, 162 [2002]).
The defendant's contention that the evidence was legally insufficient to support hisconvictions of assault in the second degree and criminal possession of a weapon in thethird degree is unpreserved for appellate review (see People v Delgado, 109 AD3d 483 [2013]). In anyevent, viewing the evidence in the light most favorable to the prosecution (see Peoplev Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of those crimes beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5];People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord greatdeference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383 [2004]). Upon reviewing the recordhere, we are satisfied that the verdict of guilt was not against the weight of the evidence(see People v Romero, 7NY3d 633 [2006]).
The defendant's claim of ineffective assistance of counsel is based, in part, on matterappearing on the record and, in part, on matter outside the record, and thus, constitutes a"mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109 [2011]; see People v Taylor, 98 AD3d593, 594 [2012], affd sub nom. People v Heidgen, 22 NY3d 259 [2013]). Inthis case, it is not evident from the matter appearing on the record that the defendant wasdeprived of the effective assistance of counsel (cf. People v Crump, 53 NY2d824 [1981]; People v Brown, 45 NY2d 852 [1978]). Since the defendant's [*2]claim of ineffective assistance cannot be resolved withoutreference to matter outside the record, a CPL 440.10 proceeding is the appropriate forumfor reviewing the claim in its entirety (see People v Taylor, 98 AD3d at 594; People v Delancey, 94 AD3d1015 [2012]; People v Maxwell, 89 AD3d at 1109).
The defendant's remaining contentions are unpreserved for appellate review and, inany event, without merit. Dillon, J.P., Leventhal, Chambers and Roman, JJ., concur.