| People v Dixon |
| 2016 NY Slip Op 03009 [138 AD3d 1016] |
| April 20, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v John Dixon, Appellant. |
Lynn W. L. Fahey, New York, NY (A. Alexander Donn of counsel), for appellant,and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Nancy Fitzpatrick Talcott, and Ayelet Sela of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Griffin, J.), rendered January 20, 2012, convicting him of rape in the first degree, assaultin the second degree, and sexual abuse in the first degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the testimony of the People's expert improperlybolstered the complainant's testimony is unpreserved for appellate review (seeCPL 470.05 [2]; People vMurray, 116 AD3d 1068, 1069 [2014]; People v Jackson, 100 AD3d 1018 [2012]). In any event,any error in admitting this testimony was harmless, since the other evidence of thedefendant's guilt was overwhelming, and there was no significant probability that, but forthe error, the jury would have acquitted the defendant (see People v Crimmins, 36NY2d 230, 241-242 [1975]; People v Myers, 117 AD3d 755, 756 [2014]).
The defendant's contention, raised in his pro se supplemental brief, that the evidencewas legally insufficient to support his conviction is unpreserved for appellate review(see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]). In anyevent, viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establishthe defendant's guilt beyond a reasonable doubt. Moreover, upon our independent reviewof the evidence pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt wasnot against the weight of the evidence (see People v Romero, 7 NY3d 633, 644-645 [2006]).
The defendant's contention, raised in his pro se supplemental brief, that he wasdeprived of a fair trial based on several instances of alleged prosecutorial misconduct isnot reviewable on direct appeal since the record contains insufficient evidence for thisCourt to review the defendant's claim (see CPL 440.10 [2] [b]; People v Craft, 104 AD3d786, 787-788 [2013]). The defendant's claim in this regard may properly bereviewed only in the context of a motion to vacate the judgment of conviction pursuantto CPL 440.10, which is designed for the purpose of developing matter dehors the record(see People v Craft, 104 AD3d at 788; People v Franklin, 77 AD3d 676 [2010]).
The defendant's contention, raised in his pro se supplemental brief, that he wasdeprived of the effective assistance of counsel is based, in part, on matter appearing onthe record and, in part, on matter outside the record, and thus constitutes a "mixed claimof ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d571, 575 n 2 [2011]). In this case, it is not evident from the matter appearing on therecord that the defendant was deprived of the effective assistance of counsel (cf.People v Crump, 53 NY2d 824, 825 [1981]; People v Brown, 45 NY2d 852,853 [1978]). Since the defendant's claim of ineffective assistance of counsel cannot beresolved without reference to matter outside the record, a CPL 440.10 proceeding is theappropriate forum for reviewing the claim in its entirety (see People v Marryshow, 135AD3d 964, 965 [2016]; People v Freeman, 93 AD3d 805, 806 [2012]; People vMaxwell, 89 AD3d at 1109).
The defendant's remaining contention, raised in his pro se supplemental brief, isunpreserved for appellate review and, in any event, without merit. Rivera, J.P., Balkin,Dickerson and Hinds-Radix, JJ., concur.