| People v Duren |
| 2015 NY Slip Op 06165 [130 AD3d 842] |
| July 15, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ronnie Duren, Appellant. |
Michael A. Fiechter, Bellmore, N.Y., for appellant.
Madeline Singas, Acting District Attorney, Mineola, N.Y. (Laurie K. Gibbons andSarah S. Rabinowitz of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Honorof, J.), rendered December 12, 2012, as amended January 16, 2013, convictinghim of murder in the second degree, attempted murder in the second degree (two counts),criminal possession of a weapon in the second degree (two counts), criminal use of afirearm in the first degree, assault in the first degree (two counts), and attempted assaultin the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the convictions ofcriminal possession of a weapon in the second degree, vacating the sentences imposedthereon, and dismissing those counts of the indictment; as so modified, the judgment isaffirmed.
Contrary to the defendant's contention, the admission of several autopsy photographswas proper, as the photos were "neither excessively gruesome nor introduced for the solepurpose of arousing the jurors' passions and prejudicing the defendant" (People v Byrd, 116 AD3d875, 876 [2014]; see Peoplev Wende, 122 AD3d 884, 885 [2014]), but rather, were "properly admitted toillustrate and corroborate the testimony of the medical examiner who performed theautopsy" (People v Lynch,92 AD3d 805, 806 [2012]).
The defendant failed to preserve for appellate review his challenge to the legalsufficiency of the evidence, as defense counsel did not base his motion to dismiss on anyspecific argument raised on appeal (see CPL 470.05 [2]; People v Gray,86 NY2d 10, 19 [1995]). In any event, viewing the evidence in the light most favorableto the People (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, 349 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe their demeanor (see People v Mateo, 2 NY3d 383,410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict of guilt was not against the weight of theevidence (see People vRomero, 7 NY3d 633, 644-645 [2006]).
The defendant's contention that he was deprived of the effective assistance ofcounsel [*2]is based, in part, on matter appearing on therecord and, in part, on matter outside the record and, thus, constitutes a "mixed claim ofineffective assistance" (People vMaxwell, 89 AD3d 1108, 1109 [2011]; see People v Mallayev, 120 AD3d 1358 [2014]). In thiscase, 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 claimof ineffective assistance of counsel cannot be resolved without reference to matteroutside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing theclaim in its entirety (see Peoplev Freeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at1109; People v Rohlehr, 87AD3d 603, 604 [2011]).
As the People correctly concede, criminal possession of a weapon in the seconddegree is an inclusory count of criminal use of a firearm in the first degree, and under thecircumstances of this case, the defendant could not have committed the crime of criminaluse of a firearm without committing the crime of criminal possession of the same firearm(see CPL 300.40 [3] [b]; People v Rogers, 94 AD3d 1152, 1153 [2012]; People v Fowler, 45 AD3d1372, 1374 [2007]). Accordingly, the convictions of criminal possession of aweapon in the second degree must be vacated, and those counts of the indictmentdismissed.
The sentence imposed was not excessive (see People v Howard, 120 AD3d 1259, 1263-1264 [2014];People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are unpreserved for appellate review and, inany event, without merit. Balkin, J.P., Austin, Sgroi and LaSalle, JJ., concur.