| People v Suyoung Yun |
| 2016 NY Slip Op 04299 [140 AD3d 402] |
| June 2, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Suyoung Yun, Appellant. |
Gotlin & Jaffe, New York (David Delbaum of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (John T. Hughes of counsel), forrespondent.
Judgment, Supreme Court, New York County (James M. Burke, J.), rendered on orabout July 2, 2014, as amended August 15, 2014, convicting defendant, after a jury trial,of predatory sexual assault, kidnapping in the second degree and burglary in the firstdegree, and sentencing him to an aggregate term of 15 years to life, unanimouslyaffirmed.
Defendant was not entitled to a mistrial based on revelations during trial that,although the victim had provided the People with certain relevant messages on her cellphone, which were duly disclosed to defendant, she had deleted other allegedly relevantmessages before meeting with the prosecutor, and that she subsequently sold the phonewith the prosecutor's approval. The People were not obligated to acquire evidence withpotential exculpatory or impeachment value from private parties (People v Hayes, 17 NY3d46, 51 [2011], cert denied 565 US —, 132 S Ct 844 [2011];People v Reedy, 70 NY2d 826 [1987]), or to "prevent the destruction of [such]evidence" (People v Banks,2 AD3d 226, 226 [1st Dept 2003], lv denied 2 NY3d 737 [2004]). In anyevent, defendant received suitable remedies by way of a stipulation that explained thecircumstances to the jury, as well as the court's offer of an opportunity for furthercross-examination if desired.
The court also properly exercised its discretion in denying defendant's mistrialmotion based on the People's delayed disclosure of their discussion with the victim of thepossibility that she could improve her immigration situation through a special visa forcertain types of crime victims. Defendant received a full opportunity during trial toexploit this information for whatever impeachment value it may have had (see Peoplev Brown, 67 NY2d 555, 559 [1986], cert denied 479 US 1093 [1987]).
The evidence established the element of serious physical injury (Penal Law§ 10.00 [10]). Defendant rendered the victim unconscious by choking her,and the People's expert testified that choking capable of causing a loss of consciousnessposes a substantial risk of death (see People v Abreu, 283 AD2d 194, 194-195[1st Dept 2001], lv denied 96 NY2d 898 [2001]).
Defendant did not preserve his contentions regarding his kidnapping conviction, hisclaim that the prosecutor constructively amended the indictment by arguing an impropertheory of guilt, and his challenges to the prosecutor's summation, and we decline toreview them in the interest of justice. As an alternative holding, we reject them on themerits.
Defendant's ineffective assistance of counsel claims are unreviewable on directappeal because they involve matters not reflected in, or fully explained by, the record(see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57NY2d 998 [1982]). Accordingly, since defendant has not made a CPL 440.10 motion,the merits of the ineffectiveness claims may not be addressed on appeal. In thealternative, to the extent the existing record permits review, we find that defendantreceived effective assistance under the state and federal standards (see People vBenevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466US 668 [1984]). [*2]Defendant has not shown that any ofcounsel's alleged deficiencies fell below an objective standard of reasonableness, or that,viewed individually or collectively, they deprived defendant of a fair trial or affected theoutcome of the case. Concur—Acosta, J.P., Saxe, Gische, Webber and Kahn,JJ.