| People v Delgado |
| 2015 NY Slip Op 09441 [134 AD3d 1046] |
| December 23, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Luis A. Delgado, Appellant. |
Robert C. Mitchell, Riverhead, NY (Adrienne Wallace of counsel), for appellant, andappellant pro se.
Thomas J. Spota, District Attorney, Riverhead, NY (Grazia DiVincenzo of counsel),for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County(Ambro, J.), rendered July 2, 2013, convicting him of burglary 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, 621 [1983]), we find that it was legally sufficient to establishthe defendant's guilt of burglary in the second degree beyond a reasonable doubt(see Penal Law § 140.25 [2]). "[A] conviction may be sustainedwhere sufficient evidence exists to infer the requisite intent from the defendant's conductand the surrounding circumstances" (People v Lamont, 25 NY3d 315, 319 [2015]). Moreover, infulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was notagainst the weight of the evidence (see People v Romero, 7 NY3d 633, 643 [2006]).
The defendant's contention that the testimony of a detective usurped the jury'sfact-finding function is unpreserved for appellate review, as he failed to object to theallegedly improper testimony at trial (see People v Torres, 71 AD3d 1063 [2010]). In any event,although the People acknowledge that the detective's expression of his personal belief asto the defendant's veracity was error, such error was harmless, as there wasoverwhelming evidence of the defendant's guilt and no significant probability that thejury would have acquitted the defendant but for the detective's testimony (see Peoplev Crimmins, 36 NY2d 230, 242 [1975]).
The defendant's argument that a certain juror was grossly unqualified to serve on thejury is without merit, as the juror's statements made during voir dire, taken in context andas a whole, unequivocally demonstrated that she could be fair and impartial (seeCPL 270.35 [1]; People v Chambers, 97 NY2d 417, 419 [2002]).
The defendant's claim in his pro se supplemental brief that he was deprived of theeffective assistance of counsel is based, in part, on matter appearing on the record and, inpart, on [*2]matter outside the record, and thusconstitutes a mixed claim of ineffective assistance (see People v Maxwell, 89 AD3d 1108, 1109 [2011]). It isnot evident from the matter appearing on the record that the defendant was deprived ofthe effective assistance of counsel. Since the defendant's ineffective assistance claimcannot 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 People v Tieman, 132AD3d 703 [2015]; People vMills, 132 AD3d 698 [2015]; People v Jemmott, 132 AD3d 697 [2015]). Dillon, J.P.,Austin, Roman and Barros, JJ., concur.