| People v Suarez |
| 2017 NY Slip Op 02378 [148 AD3d 606] |
| March 28, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Andres Suarez, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Paul Wiener of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered March 19, 2013,as amended April 4, 2013, convicting defendant, after a jury trial, of predatory sexual assault,rape in the first degree, burglary in the first degree as a sexually motivated felony, burglary in thefirst degree, attempted rape in the first degree and sexual abuse in the first degree, and sentencinghim to an aggregate term of 25 years to life, unanimously modified, as a matter of discretion inthe interest of justice, to the extent of vacating the convictions of rape in the first degree andburglary in the first degree as inclusory concurrent offenses of the convictions of predatorysexual assault and burglary in the first degree as a sexually motivated felony, respectively, andotherwise affirmed.
Defendant did not preserve his hearsay and Confrontation Clause challenges to testimony bya forensic witness, based solely on paperwork he received, regarding the specific location in thevictim's apartment building where a cigarette butt containing defendant's DNA had been found,and we decline to review it in the interest of justice. "We note that where a defect may be readilycorrected by calling additional witnesses or directing the People to do so, requiring a defendant tocall the defect to the court's attention at a time when the error complained of could readily havebeen corrected serves an important interest" (People v Rios, 102 AD3d 473, 474-475 [1st Dept 2013], lvdenied 20 NY3d 1103 [2013] [internal quotation marks and citation omitted]). As analternative holding, we find that this testimony was inadmissible, but that the error was harmlessunder the standards for constitutional and nonconstitutional error (see People vCrimmins, 36 NY2d 230 [1975]). The only issue at trial was whether the sexual activity wasforcible or consensual. Although the location of the cigarette butt had some bearing on thecredibility of defendant's testimony, and although no one with personal knowledge testified aboutwhere the butt was recovered, there was overwhelming evidence of force, including powerfulprompt-outcry evidence, and there is no reasonable possibility that the offending testimonycontributed to the verdict.
Defendant's ineffective assistance of counsel claims are unreviewable on direct appealbecause they involve matters not reflected in, or fully explained by, the record (see People vRivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]).Accordingly, since defendant has not made a CPL 440.10 motion, the merits of theineffectiveness claims may not be addressed on appeal. In the alternative, to the extent theexisting record permits review, we find that defendant received effective assistance under thestate and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998];Strickland v Washington, 466 US 668 [1984]). Defendant has not shown that any ofcounsel's alleged deficiencies fell below an objective standard of reasonableness, or that, viewedindividually or collectively, they deprived defendant of a fair trial or affected the outcome of thecase. We do not find that the above-discussed lack of preservation may be excused on the groundof ineffective assistance.
[*2] We perceive no basisfor reducing the sentence. Concur—Richter, J.P., Mazzarelli, Kahn and Gesmer, JJ.