| People v Campbell |
| 2015 NY Slip Op 06967 [131 AD3d 882] |
| September 29, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Ross Campbell, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Andrew J. Dalack ofcounsel), and Leavitt & Kerson, Forest Hills (Paul E. Kerson of counsel), forappellant.
Robert T. Johnson, District Attorney, Bronx (Rebecca L. Johannesen of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Wayne Ozzi, J.), rendered November 23,2010, convicting defendant, after a jury trial, of sex trafficking, promoting prostitution inthe second degree, rape in the first degree, criminal sexual act in the first degree, andkidnapping in the second degree, and sentencing him to an aggregate term of 25 yearsand a $2500 fine, unanimously modified, on the law, to reduce the crime victimassistance fee from $25 to $20, and otherwise affirmed.
The verdict was based on legally sufficient evidence and was not against the weightof the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing thejury's credibility determinations. The evidence supported all of the elements of eachcrime at issue, including the requisite forcible compulsion.
Defendant did not preserve his Confrontation Clause and related argumentsconcerning events that occurred during lineups, and we decline to review them in theinterest of justice. As an alternative holding, we find that although a reference to anidentification by a nontestifying victim should have been excluded, the error washarmless beyond a reasonable doubt (see People v Eastman, 85 NY2d 265,276-278 [1995]) in light of the overwhelming evidence of guilt and the fact that identitywas not a fundamental issue in the case.
Defendant's ineffective assistance of counsel claims are generally unreviewable ondirect appeal because they involve matters of strategy not reflected in, or fully explainedby, the record (see People v Rivera, 71 NY2d 705, 709 [1988]; People vLove, 57 NY2d 998 [1982]). Accordingly, since defendant has not made a CPL440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal.In the alternative, to the extent the existing record permits review, we find that defendantreceived effective assistance under the state and federal standards (see People vBenevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466US 668 [1984]). Defendant has not shown that any of counsel's alleged deficiencies fellbelow an objective standard of reasonableness, or that, viewed individually orcollectively, they deprived defendant of a fair trial or affected the outcome of thecase.
We perceive no basis for reducing the sentence. The record does not supportdefendant's contention that the court believed it was obligated to impose a fine. Wereduce the crime victim [*2]assistance fee inconformance with the statute in effect when the crimes were committed.
The arguments contained in the supplemental brief filed by additional counsel areunpreserved, and we decline to review them in the interest of justice. As an alternativeholding, we find them to be without merit. Concur—Friedman, J.P., Andrias,Saxe, Gische and Kapnick, JJ.