| People v Diaz |
| 2017 NY Slip Op 05797 [152 AD3d 471] |
| July 25, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Ray Diaz, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Karen Schlossberg of counsel), forrespondent.
Judgment, Supreme Court, New York County (Cassandra M. Mullen, J.), rendered May 8,2014 convicting defendant, after a jury trial, of criminal sexual act in the first degree and sexualabuse in the first degree, and sentencing him to an aggregate term of 23 years, unanimouslymodified, as a matter of discretion in the interest of justice, to the extent of reducing the sentenceon the conviction of criminal sexual act in the first degree to a term of 13 years, and otherwiseaffirmed.
Defendant's legal sufficiency claim is unpreserved and we decline to review it in the interestof justice. As an alternative holding, we reject it on the merits. We also find that the verdict wasnot against the weight of the evidence.
Defendant argues that the convictions should be vacated as unsupported by legally sufficientevidence and against the weight of the evidence, because the jury inconsistently found him guiltyon the criminal sexual act and sex abuse counts, but not responsible by reason of mental diseaseor defect on other counts charging burglary and robbery. He contends that the mental disease ordefect defense should have been established as to all counts because all the charged acts werepart of a single, brief chain of events, in which his mental condition could not have changed. Hethus argues that the convictions should be replaced by insanity acquittals.
Regardless of whether it is viewed as a legal insufficiency claim or a repugnant verdictsclaim, defendant's argument that the alleged inconsistency in the verdict rendered it legallydefective was not raised at a time when it could have been cured by resubmission to the jury, andit is thus unpreserved (see generally People v Gray, 86 NY2d 10, 20-21 [1995]). In anyevent, as defendant appears to concede, the verdict was not legally repugnant (see People v Muhammad, 17 NY3d532, 540 [2011]), because, under the court's charge, the jury could have found theaffirmative defense established as to the burglary and robbery counts but not the criminal sexualact and sex abuse counts (see People v Justice, 173 AD2d 144 [4th Dept 1991]). As forthe claim of insufficiency, we do not find that the factually mixed verdict undermines theconvictions. "Factual inconsistency and legal insufficiency are analytically distinct," and "anacquittal is not a preclusive finding of any fact, in the same trial, that could have underlain thejury's determination" (People vAbraham, 22 NY3d 140, 146-147 [2013]). There is no reason to apply differentprinciples when the mixed verdict consists of a combination of convictions and insanityacquittals. While we may consider an alleged factual inconsistency in a verdict in performing ourweight of the evidence review (see People v Rayam, 94 NY2d 557, 563 n [2000]), andweight of the evidence arguments do not require preservation (see People v Danielson, 9 NY3d342, 348-349 [2007]), we find it "imprudent to speculate concerning the factualdeterminations that underlay the verdict" (People v Horne, 97 NY2d 404, 413 [2002];see also People v Hemmings, 2 NY3d 1, 5 n [2004]).
All of defendant's challenges to the court's charge are concededly unpreserved, and we [*2]do not find any mode of proceedings errors exempt frompreservation requirements (see People v Thomas, 50 NY2d 467, 472 [1980]). We declineto review any of these claims in the interest of justice.
As an alternative holding, we also reject them on the merits. The charge, which followed theCriminal Jury Instructions, sufficiently conveyed to the jury the principle that unanimity wasrequired in order to reject defendant's affirmative defense (see People v Alejandro, 127 AD3d 434 [1st Dept 2015], lvdenied 26 NY3d 1142 [2016]). The court was not required to instruct the jury that it mustfind defendant not responsible on all counts if it found him not responsible on any count, becausethis affirmative defense could be "susceptible of partial, rather than total, success or failure"(Justice, 173 AD2d at 147). Finally, the instructions, viewed as a whole, did not conveyto the jurors that once they reached a finding of guilt on a count, they were not permitted torevisit that determination.
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 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, 466 US 668[1984]). Defendant has not shown that any of counsel's alleged deficiencies fell below anobjective standard of reasonableness, or that, viewed individually or collectively, they depriveddefendant of a fair trial or affected the outcome of the case. We have observed that an applicationto resubmit a mixed verdict to the jury may reasonably be deemed by counsel to be "futile, oreven counterproductive" (People vOrtiz, 100 AD3d 419, 420 [1st Dept 2012], lv denied 20 NY3d 1014 [2013]).We also find that the absence of objections to the court's charge did not deprive defendant ofeffective assistance, since nothing in the instructions at issue was constitutionally deficient orcaused defendant any prejudice. Similarly, we do not find that any lack of preservation may beexcused on the ground of ineffective assistance.
Finally, as to defendant's third point on appeal, we find the sentence excessive to the extentindicated (see People v Delgado, 80 NY2d 780, 783 [1992]). Concur—Renwick,J.P., Manzanet-Daniels, Mazzarelli and Webber, JJ.