| People v Arnold |
| 2016 NY Slip Op 03518 [139 AD3d 748] |
| May 4, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Sheldon Arnold, Appellant. |
John J. Carney, New York, NY, for appellant, and appellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, SholomJ. Twersky, and Arieh Schulman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Parker, J.), rendered January 24, 2013, convicting him of burglary in the first degree androbbery in the first degree, upon a jury verdict, and imposing sentence. The appeal bringsup for review the denial, after a hearing (Ingram, J.), of those branches of the defendant'somnibus motion which were to suppress identification testimony and physicalevidence.
Ordered that the judgment is affirmed.
The Supreme Court properly denied that branch of the defendant's omnibus motionwhich was to suppress physical evidence. The defendant contends that the cell phoneseized from his jacket by a detective should have been suppressed because the policeentered his apartment without consent and without a warrant, in violation of Payton vNew York (445 US 573, 576 [1980]). The evidence at the suppression hearingsupports the court's determination that the defendant's fiancée voluntarilyconsented to the warrantless entry, and thus, there was no Payton violation(see People v Brown, 234 AD2d 211 [1996], affd 91 NY2d 854 [1997];People v Lewis, 194 AD2d 560 [1993], affd 82 NY2d 839 [1993];People v Smith, 174 AD2d 701 [1991]; People v Satornino, 153 AD2d595 [1989]; People v Schof, 136 AD2d 578 [1988]; People v Davis, 120AD2d 606 [1986]). Although the defendant's fiancée testified that she did notprovide consent to the detectives to enter, we do not find that the court's determination tocredit the detective's testimony over that of the defendant's fiancée wasunsupportable (see People v Clement, 154 AD2d 545 [1989]). Moreover, sincethe arrest was lawful, the defendant's jacket was properly searched incident to the arrest(see United States v Robinson, 414 US 218, 227 [1973]; People v Lightfoot, 22 AD3d865 [2005]; People vGary, 19 AD3d 1118 [2005]; People v Paul, 6 AD3d 1129, 1130 [2004]; People vCapers, 298 AD2d 184 [2002]; People v Hughes, 138 AD2d 523[1988]).
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 Evans, 16 NY3d 571, 575 [2011]). In this case, it is not evident fromthe matter appearing on the record that the defendant was deprived of the effectiveassistance of counsel (cf. People v Crump, 53 NY2d 824, 825 [1981]; Peoplev Brown, 45 NY2d 852, 853-854 [1978]). Since the defendant's claim of ineffectiveassistance of counsel cannot be resolved without reference to matter outside the record, aCPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety(see People v Freeman, 93AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).
[*2] Contrary to the People's contention, the defendantadequately preserved for appellate review his contention, raised in his pro sesupplemental brief, that his conviction was not supported by legally sufficient evidence(see CPL 470.05 [2]). However, viewing the evidence in the light most favorableto the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that itwas legally sufficient to establish the defendant's identity as one of the perpetratorsbeyond a reasonable doubt. Moreover, upon the exercise of our factual review power(see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against theweight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant's contention, raised in his pro se supplemental brief, that the SupremeCourt's sentence penalized him for exercising his right to a jury trial is unpreserved forappellate review since he did not set forth the issue on the record at the time ofsentencing (see People v Hurley, 75 NY2d 887 [1990]; People v Martinez, 55 AD3d753, 754 [2008]). In any event, the defendant's contention is without merit. Therecord discloses no vindictiveness on the part of the court in arriving at the sentence. Thefact that the sentence imposed after trial was greater than that offered in connection withplea negotiations is not, standing alone, an indication that the defendant was punished forasserting his right to proceed to trial (see People v Garcia, 46 AD3d 573, 574 [2007]). Moreover,the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions, raised in his pro se supplemental brief, arewithout merit. Rivera, J.P., Miller, Hinds-Radix and LaSalle, JJ., concur.