| People v Rosado |
| 2015 NY Slip Op 09701 [134 AD3d 1133] |
| December 30, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Daniel Rosado, Appellant. |
Lynn W. L. Fahey, New York, NY (Samuel Brown of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, AmyAppelbaum, and Jean M. Joyce of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Riviezzo, J.), rendered April 15, 2013, convicting him of assault in the second degreeand criminal possession of a weapon in the fourth degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to disprove hisjustification defense beyond a reasonable doubt is unpreserved for appellate review(see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]; People v Bochi, 119 AD3d811, 812 [2014]; People vLandri, 104 AD3d 791, 791 [2013]). In any event, viewing the evidence in thelight most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621[1983]), we find that it was legally sufficient to disprove the defendant's justificationdefense beyond a reasonable doubt (see People v Pickens, 60 AD3d 699, 701 [2009]; People v Chung, 39 AD3d558, 559 [2007]). Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe their demeanor (see People vMateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record, we are satisfied that the rejection of the justificationdefense and the verdict of guilt were not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
Contrary to the defendant's contentions, the trial court providently exercised itsdiscretion by precluding the defendant from testifying about his injuries from a priorassault in which he was the victim (see People v Black, 90 AD3d 1066, 1067 [2011]; People v Bowen, 67 AD3d1022, 1023 [2009]; People v Celifie, 287 AD2d 465, 466 [2001]).
The defendant's contention that certain remarks made by the prosecutor duringsummation were improper is unpreserved for appellate review, as his counsel raised noobjection to those remarks (see CPL 470.05 [2]; People v Romero, 7 NY3d911, 912 [2006]; People vMamadou, 129 AD3d 993, 994 [2015]; People v Howard, 120 AD3d 1259, 1260 [2014]; People v Alexander, 100 AD3d649, 650 [2012]). In any event, the challenged summation remarks were faircomment upon the evidence, responsive [*2]to thedefense's summation, or within the bounds of rhetorical comment, or otherwise do notwarrant reversal (see People v Galloway, 54 NY2d 396, 399 [1981]; People vAshwal, 39 NY2d 105, 109-110 [1976]).
The defendant's claim that he was deprived of the 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 (see People v Sirico, 17 NY3d744 [2011]; People vAddison, 107 AD3d 730, 732 [2013]; cf. People v Crump, 53 NY2d 824[1981]; People v Brown, 45 NY2d 852 [1978]). Since the defendant's claim ofineffective assistance of counsel cannot be resolved without reference to matter outsidethe record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim inits entirety (see People v Addison, 107 AD3d at 732; People v Freeman, 93 AD3d805, 806 [2012]; People v Maxwell, 89 AD3d at 1109). Rivera, J.P., Hall,Roman and Sgroi, JJ., concur.