| People v Sidberry |
| 2018 NY Slip Op 01569 [159 AD3d 486] |
| March 13, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Yuseiph Sidberry, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), forrespondent.
Judgment, Supreme Court, New York County (Melissa C. Jackson, J.), rendered October 31,2013, as amended August 18, 2016, convicting defendant, after a jury trial, of criminal sale of acontrolled substance in the third degree, and sentencing him, as a second felony drug offender, toa term of 10 years, unanimously modified, as a matter of discretion in the interest of justice, tothe extent of reducing the sentence to a term of 8 years, and otherwise affirmed.
Defendant's ineffective assistance of counsel claims are unreviewable on direct appealbecause they involve matters not reflected in, or fully explained by, the record, including, amongother things, counsel's strategy, analysis and pretrial preparations (see People v Rivera, 71NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). Accordingly, sincedefendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may notbe addressed on appeal. In the alternative, to the extent the existing record permits review, wefind that defendant received effective assistance under the state and federal standards (seePeople v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466US 668 [1984]). The record does not establish defendant's claim that his counsel misunderstoodor mishandled defendant's specific agency defense, which was that he acted as both an agent andas a buyer in his own right (see People v Andujas, 79 NY2d 113 [1992]). In any event,defendant has not shown that any of counsel's alleged deficiencies fell below an objectivestandard of reasonableness, or that, viewed individually or collectively, they deprived defendantof a fair trial or affected the outcome of the case.
The court providently exercised its discretion in permitting the People to refute defendant'sagency defense by eliciting his prior convictions relating to the sale of drugs, including theirunderlying facts (see People vValentin, 29 NY3d 150, 156 [2017]). The probative value of this evidence outweighedthe potential for undue prejudice, which the court minimized by means of a limiting instruction(see People v Massey, 49 AD3d462 [1st Dept 2008], lv denied 10 NY3d 866 [2008]). The court's Sandovalruling, allowing impeachment use of these convictions and another felony conviction, likewisebalanced the appropriate factors and was a proper exercise of discretion (see People vHayes, 97 NY2d 203 [2002]).
Defendant did not preserve his claims that the prosecutor exceeded the scope of the court'srulings on the use of prior convictions, or misused these convictions in summation. Defendantalso did not preserve any of his challenges to the court's main and supplemental [*2]agency charges. We decline to review any of these claims in theinterest of justice. As an alternative holding, we find no basis for reversal.
We find the sentence excessive to the extent indicated. Concur—Friedman, J.P.,Andrias, Singh, Moulton, JJ.