| People v Jimenez |
| 2017 NY Slip Op 02062 [148 AD3d 1054] |
| March 22, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jose E. Jimenez, Appellant. |
James Kousouros, New York, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Ellen C. Abbott, and Tina Grillo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.),rendered June 3, 2015, convicting him of predatory sexual assault against a child, course ofsexual conduct against a child in the first degree (two counts), criminal contempt in the seconddegree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that he was deprived of a fair trial due to the Supreme Court'sdisplay of bias against the defense and excessive interference is unpreserved for appellate review(see CPL 470.05 [2]; People vPrado, 4 NY3d 725, 726 [2004]; People v Charleston, 56 NY2d 886, 887-888[1982]; People v Rivera, 125 AD3d694, 695 [2015]; People vOjeda, 118 AD3d 919, 919 [2014]). In any event, the record does not support thedefendant's claims of bias or excessive interference (see People v Arnold, 98 NY2d 63,67 [2002]; People v Rivera, 125 AD3d at 695; People v Melendez, 31 AD3d 186, 197 [2006]).
The defendant's contentions that the Supreme Court's limitation of his cross-examination ofthe prosecution's witnesses and preclusion of his sister as a defense witness deprived him of hisconstitutional right to present a defense are unpreserved for appellate review and, in any event,without merit (see CPL 470.05 [2]; People v May, 138 AD3d 1024, 1026 [2016]; People v Frazier, 125 AD3d 551,551 [2015]; People v Caldwell, 115AD3d 870, 870 [2014]; People vStrzelecki, 108 AD3d 644, 645 [2013]).
The defendant's contention that the Supreme Court deprived him of his constitutional right topresent a defense by denying his application to allow a defense expert to testify via Skype isunpreserved for appellate review (see CPL 470.05 [2]). In any event, the court did notimprovidently exercise its discretion, as the defendant did not demonstrate necessity (see People v Wrotten, 14 NY3d33, 40 [2009]; People vTowsley, 85 AD3d 1549, 1550 [2011]).
The defendant also failed to preserve for appellate review his contention that testimony fromthe mother of one of the complainants as to that complainant's disclosure of sexual [*2]abuse constituted improper bolstering (see CPL 470.05 [2];People v Tucker, 117 AD3d1090, 1090 [2014]; People vBatista, 92 AD3d 793, 793 [2012]). In any event, the Supreme Court properly admittedthe testimony, as " 'nonspecific testimony about [a] child-victim's reports of sexual abuse[does] not constitute improper bolstering [when] offered for the relevant, nonhearsay purpose ofexplaining the investigative process and completing the narrative of events leading to thedefendant's arrest' " (People vLudwig, 24 NY3d 221, 231 [2014], quoting People v Rosario, 100 AD3d 660, 661 [2012]; see People v Gross, 26 NY3d 689,694-695 [2016]; People v Cullen, 24NY3d 1014, 1016 [2014]).
The defendant's contention that he was deprived of the effective assistance of counsel isbased, in part, on matter appearing on the record and, in part, on matter outside the record and,thus, constitutes a "mixed claim" of ineffective assistance (People v Maxwell, 89 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d 571,575 n 2 [2011]). In this case, it is not evident from the matter appearing on the record that thedefendant was deprived of the effective assistance of counsel (cf. People v Crump, 53NY2d 824, 825 [1981]; People v Brown, 45 NY2d 852, 853-854 [1978]). As thedefendant's claim of ineffective assistance of counsel cannot be resolved without reference tomatter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing theclaim in its entirety (see People vFreeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).Dillon, J.P., Sgroi, Hinds-Radix and Maltese, JJ., concur.