| People v Jemmott |
| 2015 NY Slip Op 07292 [132 AD3d 697] |
| October 7, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Robert Jemmott, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Dina Zloczower of counsel), for appellant, andappellant pro se.
Daniel L. Master, Jr., Acting District Attorney, Staten Island, N.Y. (Morrie Kleinbartand Paul M. Tarr of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County(Rooney, J.), rendered March 8, 2011, convicting him of criminal possession of aweapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
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 beyond a reasonable doubt. Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt was not againstthe weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant's claim that he was deprived of his constitutional right to the effectiveassistance of counsel is based, in part, on matter appearing on the record and, in part, onmatter outside the record and, thus, constitutes a "mixed claim of ineffective assistance"(People v Maxwell, 89AD3d 1108, 1109 [2011]). In this case, it is not evident from the matter appearingon the record that the defendant was deprived of the effective assistance of counsel (People v McBride, 103 AD3d920, 921 [2013]; People vRopiza, 100 AD3d 935, 936 [2012]). Since the defendant's claim of ineffectiveassistance of counsel cannot be resolved without reference to matter outside the record, aCPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety(see People v Freeman, 93AD3d 805 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d603, 604 [2011]).
The defendant's remaining contention regarding the grand jury proceeding, raised inhis pro se supplemental brief, is without merit. Leventhal, J.P., Chambers, Austin andMiller, JJ., concur.