| People v Mosquero |
| 2015 NY Slip Op 04339 [128 AD3d 985] |
| May 20, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Juan Renzo Mosquero, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (David G. Lowry of counsel), for appellant, andJuan Mosquera, named herein as Juan Renzo Mosquero, appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, EllenC. Abbot, Johnnette Traill, Jeanette Lifschitz, Merri Turk Lasky, and Karen Wigle Weissof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Zayas, J.), rendered March 19, 2012, convicting him of course of sexual conduct againsta child in the first degree and criminal sexual act in the first degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that he was deprived of a fair trial due to the cumulativeeffects of comments made by the prosecutor during opening statements,cross-examination, and summation is unpreserved for appellate review (see People v Howard, 120AD3d 1259 [2014]; Peoplev Belle, 113 AD3d 630, 631 [2014]).
The defendant's contention, raised in his main brief and in his pro se supplementalbrief, that he was deprived of the constitutional right to effective assistance of counsel isbased, in part, on matter appearing on the record and, in part, upon matter appearingoutside the record, 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 Addison, 107 AD3d730, 732 [2013]). Here, it is not evident from the matter appearing on the record thatthe defendant was deprived of the effective assistance of counsel (cf. People vCrump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]). Sincethe defendant's claim of ineffective assistance of counsel 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 Addison, 107 AD3d at732).
The defendant's contentions raised in his pro se supplemental brief are unavailing.The defendant's contention that the interpreter used during the trial was incompetent ormade errors in translation such that he was denied a fair trial finds no support in therecord. The defendant's argument that he was denied his right to testify before the grandjury is unpreserved for appellate review and, in any event, without merit (see People v Dahlbender, 23AD3d 493, 493-494 [2005]; People v Brooks, 247 AD2d 486 [1998]).Additionally, we find no merit to the defendant's claim that his right to [*2]be present at sidebar conferences pursuant to People vAntommarchi (80 NY2d 247 [1992]) was violated. As to the defendant's contentionthat the trial transcripts are incorrect, his remedy was to move to resettle the transcript (see People v Moreau, 34 AD3d499 [2006]). To the extent that it can be reviewed on this appeal, the defendant'scontention that he was denied his right to a speedy trial is without merit. His contentionrelating to certain Family Court proceedings pertains to matter dehors the record, andtherefore cannot be considered on this appeal.
Contrary to the defendant's further contention in his pro se supplemental brief, thesentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions, including those raised in his pro sesupplemental brief, are unpreserved for appellate review and, in any event, without merit.Rivera, J.P., Leventhal, Chambers and Sgroi, JJ., concur.