| People v Mills |
| 2015 NY Slip Op 07294 [132 AD3d 698] |
| October 7, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Theodore Mills, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Rahshanda Sibley of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Nicoletta J. Caferri, and Laura T. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Margulis, J.), rendered March 1, 2012, convicting him of robbery in the first degree,robbery in the third degree, and petit larceny, after a nonjury trial, and imposingsentence.
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 prove thedefendant's guilt of robbery in the first degree, robbery in the third degree, and petitlarceny beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342, 348 [2007]), we accord great deference to the factfinder's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt was not against theweight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant's claim of ineffective assistance of counsel is based, in part, on matterappearing on the record and, in part, on matter outside the record and, thus, constitutes a"mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109 [2011]; see People v Taylor, 98 AD3d593, 594 [2012], affd sub nom. People v Heidgen, 22 NY3d 259 [2013]). Inthis case, 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 cannot be resolved without reference to matter outside therecord, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in itsentirety (see People v Taylor, 98 AD3d at 594; People v Delancey, 94 AD3d1015 [2012]; People v Maxwell, 89 AD3d at 1109). Leventhal, J.P.,Chambers, Austin and Miller, JJ., concur.