| People v Guzman |
| 2016 NY Slip Op 03192 [138 AD3d 1140] |
| April 27, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Herber Guzman, Appellant. |
Mark Diamond, New York, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Yael V. Levy and W. ThomasHughes of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Donnino, J.), rendered June 13, 2014, convicting him of murder in the second degreeand criminal possession of a controlled substance in the seventh degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the entirely circumstantial evidence in this case in the light most favorableto the prosecution, and giving it the benefit of every reasonable inference to be drawnfrom it (see People v Lewis, 64 NY2d 1111, 1112 [1985]; People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt was not againstthe weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant's contention that the Supreme Court's circumstantial evidence chargewas inadequate is unpreserved for appellate review (see CPL 470.05 [2]; People v Rudolph, 132 AD3d912, 913 [2015]) and, in any event, without merit.
The defendant's contention that certain remarks made by the prosecutor duringsummation deprived him of a fair trial is also unpreserved for appellate review, since heeither failed to object to the remarks at issue, made only a general objection, or failed torequest further curative relief when his objections were sustained (see CPL470.05 [2]; People vRomero, 7 NY3d 911, 912 [2006]). In any event, the challenged remarks werefair comment on the evidence and the reasonable inferences to be drawn therefrom (see People v Carter, 130 AD3d1060 [2015]; People vRamrattan, 126 AD3d 1013 [2015]; People v Williams, 123 AD3d 1152 [2014]), fair responseto the defense summation (seePeople v Johnson, 127 AD3d 1234 [2015]), or do not otherwise require reversal(see People v Galloway, 54 NY2d 396, 399 [1981]; People v Ashwal, 39NY2d 105, 109-110 [1976]; People v Rivera, 128 AD3d 857 [2015]; [*2]People v Philips, 120 AD3d 1266 [2014]).
The defendant's contention that he was deprived of the effective assistance ofcounsel is based, in part, on matter appearing on the record and, in part, on matter outsidethe record, and thus constitutes a "mixed claim" of ineffective assistance (People v Maxwell, 89 AD3d1108, 1109 [2011]; seePeople v Rosado, 134 AD3d 1133 [2015]). It is not evident from the matterappearing on the record that the defendant was deprived of the effective assistance ofcounsel (see People vFabers, 133 AD3d 616, 617-618 [2015]). 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 vRenaud, 137 AD3d 818 [2016]; People v Addison, 107 AD3d 730, 732 [2013]; People v Freeman, 93 AD3d805, 806 [2012]; People v Maxwell, 89 AD3d at 1109). Rivera, J.P., Miller,Hinds-Radix and LaSalle, JJ., concur.