| People v Marks |
| 2015 NY Slip Op 04149 [128 AD3d 852] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v George Marks, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Reyna E. Marder of counsel), for appellant, andappellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, VictorBarall, Jill Oziemblewski, and Beth Hurley of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Ingram, J.), rendered December 21, 2010, convicting him of grand larceny in the firstdegree, grand larceny in the second degree, grand larceny in the third degree, andfalsifying business records in the first degree (six counts), upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed, and the matter is remitted to the SupremeCourt, Kings County, for the issuance of an amended sentence and commitment sheet, toreflect that the defendant was sentenced to an indeterminate term of 3 to 9 years upon hisconviction of grand larceny in the second degree.
The defendant's claim that his right to a fair trial was violated due to the trial court'sfailure to provide any instructions defining larceny by false pretenses is unpreserved forappellate review (see CPL 470.05 [2]). In any event, contrary to the defendant'scontention, the trial court's charges with respect to grand larceny in the second and thirddegrees were sufficient because they fairly instructed the jury on the correct principles oflaw to be applied to the case (see People v Ladd, 89 NY2d 893, 895-896 [1996];People v Pena, 100 AD3d1024 [2012]; People vWebb, 89 AD3d 874 [2011]).
The defendant's contention that certain remarks made by the prosecutor duringsummation were improper is without merit, as the challenged remarks were within thebroad bounds of rhetorical comment permissible in closing arguments, fair response toarguments made by defense counsel in summation, or fair comment upon the evidence(see People v Galloway, 54 NY2d 396, 400 [1981]; People v Ashwal, 39NY2d 105, 109 [1976]; Peoplev Dobbins, 123 AD3d 1140 [2014]). Moreover, to the extent that any prejudicialeffect may have resulted from some of the challenged remarks, it was ameliorated by thetrial court's immediate admonitions (see People v Tosca, 98 NY2d 660 [2002]; People v Philips, 120 AD3d1266 [2014]; People vRhodes, 115 AD3d 681 [2014]).
While the defendant's claim that the evidence was legally insufficient to support hisconvictions of falsifying business records is preserved for appellate review, his claim thatthe evidence was legally insufficient to support his convictions of grand larceny in thefirst, second, and third degrees is unpreserved for appellate review (see CPL470.05 [2]; People vHawkins, 11 NY3d 484, 492 [2008]). In any event, viewing the evidence in thelight most favorable to the prosecution (see [*2]People v Contes, 60 NY2d 620, 621 [1983]), we findthat was legally sufficient to establish the defendant's guilt with regard to all of thecrimes charged beyond a reasonable doubt (see People v Reed, 22 NY3d 530 [2014]). Moreover, infulfilling our responsibility to conduct an independent review of the weight of theevidence (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 as to all of the crimes charged was not against the weightof the evidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant's claim of ineffective assistance of counsel, which is based on matterboth appearing on the record and on matter outside of the record, constitutes a mixedclaim of ineffective assistance (see People v Williams, 120 AD3d 721 [2014]; People v Maxwell, 89 AD3d1108 [2011]; see alsoPeople v Evans, 16 NY3d 571, 575 n 2 [2011]). As it is not evident from thematter appearing on the record that the defendant was deprived of the effective assistanceof counsel, and 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 Williams, 120AD3d 721 [2014]; People vAddison, 107 AD3d 730 [2013]; People v Freeman, 93 AD3d 805 [2012]).
As the defendant argues, and as the People correctly concede, the sentence andcommitment sheet incorrectly reflects that the defendant was sentenced to anindeterminate term of 4 to 12 years upon his conviction of grand larceny in the seconddegree. The defendant was actually sentenced to an indeterminate term of 3 to 9 yearsupon his conviction of grand larceny in the second degree. Accordingly, the matter mustbe remitted to the Supreme Court, Kings County, for the issuance of an amendedsentence and commitment sheet that properly reflects the sentence that was imposed (see People v Mercado, 74AD3d 990 [2010]). Dillon, J.P., Leventhal, Austin and LaSalle, JJ., concur.