| People v Campbell |
| 2016 NY Slip Op 05815 [142 AD3d 623] |
| August 17, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Quiawon Campbell, Appellant. |
Benjamin Greenwald, New Windsor, NY, for appellant.
David M. Hoovler, District Attorney, Middletown, NY (Elizabeth L. Schulz andAndrew R. Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered April 29, 2014, convicting him of robbery in the first degree, robberyin the second degree, criminal use of a firearm in the first degree (two counts), criminalpossession of a weapon in the second degree (two counts), and resisting arrest, upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to prove hisguilt of robbery in the first degree and robbery in the second degree beyond a reasonabledoubt is unpreserved for appellate review, as he made only a general motion to dismiss atthe close of the People's case, and did not raise the specific grounds that he now raises onappeal (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008];People v Gray, 86 NY2d 10 [1995]; People v James, 135 AD3d 787 [2016]; People v Rudolph, 132 AD3d912 [2015]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that therewas legally sufficient direct and circumstantial evidence to establish the defendant's guiltof robbery in the first degree and robbery in the second degree beyond a reasonabledoubt. Moreover, upon the exercise of our factual review power (see CPL 470.15[5]), we are satisfied that the verdict of guilt as to those crimes was not against theweight of the evidence (seePeople v Danielson, 9 NY3d 342, 348 [2007]; People v Romero, 7 NY3d633, 644-645 [2006]).
The defendant's contention that he was deprived of a fair trial by the County Court'sfailure to instruct the jury that his identity had to be proven beyond a reasonable doubt isunpreserved for appellate review, as he failed to object to the court's jury instructions orto request any additional instructions (see People v Perez, 77 NY2d 928 [1991]).In any event, this contention is without merit. The court's charge was a correct statementof the law which sufficiently apprised the jury that the reasonable doubt standard appliedto identification (see People v Knight, 87 NY2d 873 [1995]; People vPerez, 77 NY2d 928 [1991]; People v Newton, 46 NY2d 877 [1979]).Moreover, when evaluated against the background of all the evidence presented, thefailure to expand the charge on identification did not deprive the defendant of a fair trial(see People v Knight, 87 NY2d 873, 875 [1995]; People v Crimmins,[*2]36 NY2d 230, 238 [1975]).
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 v Rivera, 71 NY2d 705 [1988]; People v Love, 57NY2d 998 [1982]; People vHernandez, 125 AD3d 885, 886-887 [2015]; People v Maxwell, 89AD3d at 1109). 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 Renaud, 137AD3d 818, 821 [2016]; People v Addison, 107 AD3d 730, 732 [2013]; People vMaxwell, 89 AD3d at 1109). Mastro, J.P., Hall, Sgroi and Barros, JJ., concur.