| People v Rivera |
| 2015 NY Slip Op 04154 [128 AD3d 857] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ciceron J. Rivera, Appellant. |
Marianne Karas, Thornwood, N.Y., for appellant.
Madeline Singas, Acting District Attorney, Mineola, N.Y. (Judith R. Sternberg andBarbara Kornblau of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Nassau County(Ayres, J.), rendered April 4, 2013, convicting him of attempted assault in the firstdegree, assault in the second degree, attempted assault in the second degree, and criminalpossession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence,and (2) a resentence of the same court dated April 26, 2013.
Ordered that the judgment and resentence are affirmed.
The defendant contends that he was deprived of the effective assistance of counsel ata pretrial hearing because his attorney failed to argue that he was improperly questionedby the police after his indelible right to counsel had attached. The defendant's claim isbased, in part, on matter appearing on the record and, in part, on matter outside therecord and, thus, constitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d1108, 1109 [2011]; seePeople v Evans, 16 NY3d 571, 575 n 2 [2011]; People v Credle, 124 AD3d792, 793 [2015]). 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 reviewingthis claim in its entirety (seePeople v Verni, 127 AD3d 887, 888 [2d Dept 2015]; People v Maxwell, 89 AD3d at 1109). For the same reason,the defendant's contention that he was deprived of his right to effective assistance ofcounsel with respect to pretrial plea negotiations may only be raised pursuant to CPL440.10
The defendant's contention that certain remarks made by the prosecutor duringsummation deprived him of a fair trial is largely unpreserved for appellate review,because he failed to object to most of the challenged remarks (see CPL 470.05[2]; People v Martin, 116AD3d 981, 982 [2014];People v Jorgensen, 113 AD3d 793, 794 [2014]; People v Hoke, 111 AD3d959, 960 [2013]). In any event, the challenged remarks were fair comment upon theevidence, were responsive to the defense counsel's summation, were within the bounds ofrhetorical comment, or do not otherwise require reversal (see People v Galloway,54 NY2d 396, 399 [1981]; People v Ashwal, 39 NY2d 105, 109-110 [1976];People v Martin, 116 AD3d at 983; People v Herb, 110 AD3d 829, 830 [2013]).
[*2] The sentence imposed was not excessive (seePeople v Suitte, 90 AD2d 80 [1982]). Rivera, J.P., Sgroi, Maltese and LaSalle, JJ.,concur.