| People v Borges |
| 2015 NY Slip Op 06357 [130 AD3d 1057] |
| July 29, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Manuel Borges, Appellant. |
Carol E. Castillo, East Setauket, N.Y., for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (J.Doyle, J.), rendered June 21, 2012, convicting him of burglary in the second degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the County Court did not improvidentlyexercise its discretion in denying his request for substitute counsel since the defendantraised no serious complaint about assigned counsel (see People v Porto, 16 NY3d 93, 100-101 [2010]; People v Ward, 121 AD3d1026, 1027 [2014]). Nor did the County Court improvidently exercise its discretionwhen, on the first day of jury selection, it denied the defendant's request for anadjournment to obtain counsel of his own choosing. The defendant had ampleopportunity to retain counsel of his own choosing between this Court's determination ona prior appeal (see People vBorges, 90 AD3d 1067 [2011]) and his retrial. Moreover, the defendant failed todemonstrate that the requested adjournment was necessitated by forces beyond hiscontrol and was not a delaying tactic (see People v Campbell, 54 AD3d 959 [2008]; People vGrigg, 299 AD2d 367 [2002]).
The defendant failed to preserve for appellate review his contention that he wasdeprived of his constitutional right of confrontation when a forensic scientist from theSuffolk County Crime Laboratory testified that he received a "hit" that matched DNAmaterial recovered from the crime scene to a DNA profile of the defendant in theCombined DNA Index System database, commonly known as the CODIS database(see CPL 470.05 [2]; People v Zappulla, 103 AD3d 759 [2013]). In any event,while the testimony was improperly elicited (see People v Oliver, 92 AD3d 900, 901 [2012]), it washarmless beyond a reasonable doubt (see People v Crimmins, 36 NY2d 230, 237[1975]), since that testimony was cumulative of the forensic scientist's testimony that hegenerated a DNA profile using a buccal swab from the inside of the defendant's mouth,which matched the DNA material recovered from the crime scene (see People v Gonzalez, 120AD3d 832, 833 [2014]; cf. People v Oliver, 92 AD3d at 902).
The defendant's challenge to certain comments the prosecutor made in summation iswithout merit, as the remarks were either fair comment on the evidence or, to the extentthat they were improper, did not deprive the defendant of a fair trial (see People vAshwal, 39 NY2d 105, 109-110 [1976]; People v Bell, 126 AD3d 993 [2015]; People v Fuhrtz, 115 AD3d760 [2014]; People v Winters, 255 AD2d 408 [1998]).
[*2] The defendant's claim of ineffective assistance ofcounsel is based, in part, on matter appearing on the record and, in part, on matter outsidethe record and, thus, constitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d1108, 1109 [2011]; seePeople v Taylor, 98 AD3d 593, 594 [2012]). In this case, it is not evident fromthe matter appearing on the record that the defendant was deprived of the effectiveassistance of counsel (cf. People v Crump, 53 NY2d 824 [1981]; People vBrown, 45 NY2d 852 [1978]). Since the defendant's claim of ineffective assistancecannot be resolved without reference to matter outside the record, a CPL 440.10proceeding is the appropriate forum for reviewing the claim in its entirety (see Peoplev Taylor, 98 AD3d at 594; People v Delancey, 94 AD3d 1015 [2012]; People vMaxwell, 89 AD3d at 1109).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of burglary in the second degree beyond a reasonable doubt. Moreover,in fulfilling 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 was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's conviction of grand larceny in the fourth degree following theimposition of his initial sentence in this matter constituted "objective informationconcerning identifiable conduct on the part of the defendant occurring after the time ofthe original sentencing proceeding" (North Carolina v Pearce, 395 US 711, 726[1969]), appearing affirmatively on the record, that rebuts any presumption ofvindictiveness that arose from the enhanced sentence that was imposed upon thedefendant's conviction after retrial (see Wasman v United States, 468 US 559[1984]; see also People v Miller, 65 NY2d 502 [1985]).
The defendant's remaining contentions are without merit. Mastro, J.P., Chambers,Roman and LaSalle, JJ., concur.