| People v Boyd |
| 2016 NY Slip Op 01196 [136 AD3d 935] |
| February 17, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Gerard Boyd, Appellant. |
Lynn W.L. Fahey, New York, NY (Elizabeth Budnitz of counsel), for appellant, andappellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, Seth M.Lieberman, and Daniel Berman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Mangano, Jr., J.), rendered July 17, 2013, convicting him of criminal possession of aweapon in the second degree and resisting arrest, upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing (Riviezzo, J.), ofthat branch of the defendant's omnibus motion which was to suppress physicalevidence.
Ordered that the judgment is affirmed.
In his main brief and pro se supplemental brief, the defendant contends that thehearing court improperly denied that branch of his omnibus motion which was tosuppress physical evidence because the testimony of the police officer at the pretrialsuppression hearing was incredible and patently tailored to overcome constitutionalobjections. "The credibility determinations of a hearing court are entitled to greatdeference on appeal, and will not be disturbed unless clearly unsupported by the record"(People v Taylor, 120 AD3d519, 520 [2014] [internal quotation marks omitted]; see People v Wheeler, 2NY3d 370, 374 [2004]; People v Prochilo, 41 NY2d 759, 761 [1977]). Contraryto the defendant's contention, the officer's testimony was not incredible or patentlytailored to overcome constitutional objections (see People v Cruz, 131 AD3d 706 [2015]; People v Rowley, 127 AD3d884, 885 [2015]; People vLewis, 117 AD3d 751 [2014]). Moreover, the hearing court properly found thatthe police officers had probable cause to arrest the defendant (see People v Hills,295 AD2d 365 [2002]; People v Williams, 154 AD2d 564 [1989]).
The defendant's contention that the evidence was legally insufficient to support hisconvictions is unpreserved for appellate review (see People v Lane, 7 NY3d 888, 889 [2006]; see also People v Barber, 133AD3d 868 [2015]). In any event, viewing the evidence in the light most favorable tothe People (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it waslegally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover,upon our independent review of the evidence pursuant to CPL 470.15 (5), we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633, 644-645 [2006]).
The defendant's contention, raised in his pro se supplemental brief, [*2]that he was deprived of the effective assistance of counsel,is based, in part, on matter appearing on the record and, in part, on matter outside therecord, and thus constitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d1108, 1109 [2011]; seePeople v Evans, 16 NY3d 571, 575 n 2 [2011]). In this case, it is not evidentfrom the matter appearing on the record that the defendant was deprived of the effectiveassistance of counsel (cf. People v Crump, 53 NY2d 824, 825 [1981]). Since thedefendant's claim of ineffective assistance of counsel cannot be resolved withoutreference to matter outside the record, a CPL 440.10 proceeding is the appropriate forumfor reviewing the claim in its entirety (see People v Crosby, 133 AD3d 681 [2015]; People v Donovan, 133 AD3d615 [2015]; People v Maxwell, 89 AD3d at 1109).
The defendant failed to preserve for appellate review his claim, raised in his pro sesupplemental brief, that he was penalized for going to trial rather than accepting a pleaoffer, as he failed to raise this issue before the sentencing court (see People v Rivera, 126 AD3d818, 820 [2015]; People vEvans, 16 AD3d 595 [2005]). In any event, the fact that the sentence imposedafter trial was greater than that offered during plea negotiations does not, standing alone,establish that the defendant was punished for exercising his right to proceed to trial (see People v Martinez, 26NY3d 196, 200 [2015]; People v Dunaway, 134 AD3d 952 [2015]; People v Preston, 88 AD3d748 [2011]). Moreover, the sentence imposed was not excessive (see People vSuitte, 90 AD2d 80 [1982]).
The defendant's remaining contention, raised in his pro se supplemental brief, iswithout merit. Mastro, J.P., Leventhal, Austin and LaSalle, JJ., concur.