| People v Adamson |
| 2015 NY Slip Op 06672 [131 AD3d 701] |
| August 26, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Alty Adamson, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant, andappellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andKeith Dolan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Marrus, J.), rendered March 28, 2012, convicting him of burglary in the first degree andassault in the second degree (two counts), upon a jury verdict, and sentencing him toconsecutive determinate terms of imprisonment of 25 years on the conviction of burglaryin the first degree and seven years on each conviction of assault in the second degree,followed by periods of postrelease supervision.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by providing that the sentences imposed on each conviction of assault in thesecond degree shall run concurrently with each other and consecutively to the sentenceimposed on the conviction of burglary in the first degree; as so modified, the judgment isaffirmed.
The defendant contends that the evidence in support of his conviction of burglary inthe first degree was legally insufficient to establish the element that he remained in thesubject dwelling unlawfully. This contention is unpreserved for appellate review (seeCPL 470.05 [2]; People vHawkins, 11 NY3d 484, 492 [2008]) and, in any event, without merit. Thedefendant's further contention, raised in his pro se supplemental brief, that the evidencewas legally insufficient because it was based on eyewitness identification testimony, isalso without merit. Viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficientto establish the defendant's guilt beyond a reasonable doubt (see People v Garvey, 25 AD3d808 [2006]; People v Acosta, 273 AD2d 318 [2000]). Moreover, in fulfillingour responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the factfinder's opportunity to view the witnesses, hear thetestimony, and observe demeanor (see People v Mateo, 2 NY3d 383 [2004];People v Bleakley, 69 NY2d 490 [1987]). Upon reviewing the record here, weare satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
Under the circumstances of this case, the Supreme Court properly allowed theadmission of evidence concerning the pretrial photographic identification of thedefendant made by one of the two complainants. The evidence elicited at a suppressionhearing established that the [*2]defendant had to berestrained during the lineup at which the complainants identified him due to hisuncooperative behavior. Since the restraint of the defendant during the lineup could giverise to an inference that the lineup was suggestive, and the lineup identification made bythe complainants was therefore unreliable, the People were properly permitted to counterthis inference by introducing evidence of the prior photographic identification (see People v Perkins, 15 NY3d200, 201-202 [2010]). The defendant's further contention that certain testimony of adetective regarding the photographic identification constituted improper bolstering isunpreserved for appellate review (see CPL 470.05 [2]) and, in any event, withoutmerit (see People v Tavarez,55 AD3d 932 [2008]; People v Bryan, 50 AD3d 1049, 1050 [2008]).
The defendant's contention, raised in his pro se supplemental brief, that he wasdenied his right to be present at several sidebar conferences during trial is without merit(see People v White, 41AD3d 621, 622 [2007]; seealso People v Maynard, 108 AD3d 781, 781 [2013]).
Contrary to the defendant's contention raised in his pro se supplemental brief, underthe circumstances of this case, he was not deprived of his right to counsel during thelineup (see People vMitchell, 2 NY3d 272, 274 [2004]; People v Pena, 242 AD2d 546, 547[1997]; People v Cobb, 161 AD2d 721 [1990]).
In his pro se supplemental brief, the defendant contends that the prosecutorimproperly interrupted him during his grand jury testimony and subsequently, at trial,improperly capitalized on this alleged misconduct by emphasizing inconsistenciesbetween the defendant's grand jury testimony and his trial testimony oncross-examination. This contention is unpreserved for appellate review and, in any event,without merit (see People vMeleance, 52 AD3d 845, 845 [2008]; People v Bethea, 12 AD3d 454, 455 [2004]).
We also reject the defendant's claim, raised in his pro se supplemental brief, thatreversal is warranted because of certain remarks made by the prosecutor on summation.There is no merit to the defendant's contention that the prosecutor's remarksimpermissibly shifted the burden of proof to him. While the prosecutor's remark that thedefendant told a "lie" during his testimony was improper, it did not deprive the defendantof a fair trial (see People vAlmonte, 23 AD3d 392, 394 [2005]). The remaining challenges to theprosecutor's summation remarks are unpreserved for appellate review (see CPL470.05 [2]) and, in any event, those challenged remarks were proper responses toarguments made by defense counsel on summation or fair comment on the evidence(see People v Halm, 81 NY2d 819, 821 [1993]; People v Gonzalez, 11 AD3d558 [2004]; People vMalave, 7 AD3d 542 [2004]).
The defendant's contentions, raised in his pro se supplemental brief, regardingalleged Brady (see Brady v Maryland, 373 US 83 [1963]) andRosario (see People v Rosario, 9 NY2d 286 [1961]) material that was notturned over to him pertain to matter dehors the record and, therefore, cannot be reviewedon direct appeal (see People vMallayev, 120 AD3d 1358, 1359 [2014]; People v Franklin, 77 AD3d 676, 676 [2010]; People v Helenese, 75 AD3d653 [2010]; People vValdes, 66 AD3d 925 [2009]).
The defendant's further contention, raised in his pro se supplemental brief, that hewas deprived of the effective assistance of counsel is based, in part, on matter appearingon the record and, in part, on matter outside the record and, thus, constitutes a "mixedclaim" of ineffective assistance (People v Dorcinvil, 122 AD3d 874, 878 [2014] [internalquotation marks omitted]; seePeople v Maxwell, 89 AD3d 1108, 1109 [2011]). In this case, it is not evidentfrom the matter appearing on the record that the defendant was deprived of the effectiveassistance of counsel (cf. People v Crump, 53 NY2d 824, 825 [1981]). Since thedefendant's claim of ineffective assistance 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 People v Dorcinvil, 122 AD3d at 878; People vMaxwell, 89 AD3d at 1109).
The defendant contends, in his pro se supplemental brief, that he was denied hisconstitutional and statutory right to a speedy trial (see CPL 30.20, 30.30).However, in this regard, the defendant has failed to provide a sufficient record, whichprecludes appellate review of his claim [*3]that he wasdenied the right to a speedy trial (see People v Davison, 92 AD3d 691, 692 [2012]; People v Thomas, 46 AD3d712, 712-713 [2007]; People v Santana, 232 AD2d 663 [1996]).
The sentence imposed was excessive to the extent indicated herein (see People vSuitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions raised in his pro se supplemental brief areunpreserved for appellate review (see CPL 470.05 [2]) and, in any event, withoutmerit. Balkin, J.P., Austin, Miller and Maltese, JJ., concur.