| People v Murray |
| 2017 NY Slip Op 07279 [154 AD3d 881] |
| October 18, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Carlton Murray, Appellant. |
Patrick Michael Megaro, Uniondale, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Joseph N. Ferdenzi, and Mariana Zelig of counsel), for respondent.
Appeals by the defendant from two judgments of the Supreme Court, Queens County(Griffin, J.), both rendered January 12, 2015, convicting him of assault in the second degree,criminal possession of a weapon in the second degree (two counts), and criminal possession of aweapon in the third degree under indictment No. 3055/12, and intimidating a victim or a witnessin the third degree and aggravated harassment in the second degree under indictment No.1474/13, upon jury verdicts, and imposing sentences.
Ordered that the judgments are affirmed.
After a consolidated jury trial at which the defendant testified on his own behalf, thedefendant was convicted of assault in the second degree, criminal possession of a weapon in thesecond degree (two counts), intimidating a victim or a witness in the third degree, and relatedcrimes. These convictions were based, in part, on evidence that the defendant pulled a gun on hisnephew, who was shot multiple times during an ensuing struggle for the gun, and evidence that,after the nephew testified before the grand jury, the defendant called his home several times andsaid, "if you weren't my nephew you would be dead."
Contrary to the defendant's contention, the Supreme Court properly denied his motion todismiss the indictments on the ground that he was deprived of his statutory right to a speedy trialpursuant to CPL 30.30. In felony cases, the People are required to be ready for trial within sixmonths, or 181 days, after the commencement of the criminal action (see CPL 30.30 [1][a]; People v Nielsen, 306 AD2d 500, 501 [2003]). Excludable periods include, inter alia,reasonable periods of delay resulting from other proceedings concerning the defendant, such aspretrial motions, or continuances obtained on consent or at the request of the defendant(see CPL 30.30 [4] [a], [b]; People v Nielsen, 306 AD2d at 501). Here, withrespect to indictment No. 1474/13, only 114 days were chargeable to the People after subtractingperiods excludable under CPL 30.30 (4). With respect to indictment No. 3055/12, at most, 158days of delay were chargeable to the People after subtracting periods excludable under CPL30.30 (4).
The defendant's contention that his conviction of intimidating a victim or a witness [*2]in the third degree was not supported by legally sufficient evidenceis without merit. Viewing the evidence adduced at trial in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish, beyond a reasonable doubt, the defendant's guilt of that crime (seePenal Law § 215.15 [1]; People v Danielson, 9 NY3d 342, 349 [2007]; People vHenderson, 265 AD2d 573 [1999]).
The defendant contends that he was deprived of the effective assistance of counsel becausecounsel did not review certain evidence with him and did not adequately prepare him to testify attrial. This contention is based, in part, on matter appearing on the record and, in part, on matteroutside the record, and thus constitutes a "mixed claim" of ineffective assistance of counsel (People v Maxwell, 89 AD3d 1108,1109 [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 (see People v Marryshow, 135 AD3d964, 965 [2016]). Since the defendant's claim of ineffective assistance of counsel cannot beresolved without reference to matter outside the record, a CPL 440.10 proceeding would be theappropriate forum for reviewing the claim in its entirety (People v Galtieri, 151 AD3d 879, 882 [2017]; see People vMarryshow, 135 AD3d at 965; People v Freeman, 93 AD3d 805, 806, 940 [2012]). Mastro, J.P.,Leventhal, Maltese and Brathwaite Nelson, JJ., concur.