| People v Stewart |
| 2018 NY Slip Op 03711 [161 AD3d 1108] |
| May 23, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Brian Stewart, Appellant. |
Lipsitz Green Scime Cambria LLP, Buffalo, NY (Erin E. McCampbell of counsel), forappellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Christine DiSalvo and StevenA. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (BarryWarhit, J.), rendered April 16, 2013, convicting him of rape in the third degree and endangeringthe welfare of a child, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
We agree with the County Court's Molineux ruling (see People v Molineux,168 NY 264 [1901]). The evidence at issue was admissible as relevant background material toexplain to the jury the relationship between the defendant and the complainant, as evidence of thedefendant's identity as the perpetrator, as evidence of his motive and intent, and as evidence ofhis consciousness of guilt (see People vSmalls, 145 AD3d 802, 802 [2016]; People v Maxey, 129 AD3d 1664, 1665 [2015]; People vGriffin, 126 AD2d 743, 744 [1987]). The defendant's argument that the court's limitinginstructions regarding this evidence were insufficient is unpreserved for appellate review (see People v Devaughn, 84 AD3d1394, 1395 [2011]; People vNorman, 40 AD3d 1128, 1129-1130 [2007]), and, in any event, without merit.
Furthermore, we agree with the County Court's determination to permit the admission intoevidence of an audio recording of a telephone conversation the defendant had with the victim,and a transcript of that conversation, which the defendant contends were subject to a CPL 160.50sealing order in a Rockland County prosecution of the defendant. "Evidence obtained as theresult of a statutory violation lacking constitutional implications has long been held admissible asevidence of guilt" (People v Torres, 291 AD2d 273, 274 [2002]; see People v Afrika, 13 AD3d1218, 1220 [2004]; People v Peterkin, 190 AD2d 825, 826 [1993]). Here, theviolation of CPL 160.50 did "not implicate constitutional considerations," and, therefore, did notwarrant suppression (People v Patterson, 78 NY2d 711, 716-718 [1991]; see People vTorres, 291 AD2d at 274; People v Williams, 271 AD2d 363, 364 [2000]; Peoplev Peterkin, 190 AD2d at 826).
The defendant's claim that he was deprived of the constitutional right to the effectiveassistance of counsel 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 (People v Maxwell, 89 AD3d 1108,1109 [2011]; see People v Evans, 16NY3d 571, 575 n 2 [2011]). In this case, it is not [*2]evidentfrom the matter appearing on the record that the defendant was deprived of the effectiveassistance of counsel (see People vTaylor, 1 NY3d 174, 176-177 [2003]; People v Cruz, 127 AD3d 987, 988 [2015]; People vCrandall, 199 AD2d 867, 869 [1993]; cf. People v Robinson, 118 AD3d 1028, 1028 [2014]; People v Salazar, 1 AD3d 387, 388[2003]). Since the defendant's claim of ineffective assistance cannot be resolved withoutreference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum forreviewing the claim in its entirety (seePeople v Freeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at1109; People v Rohlehr, 87 AD3d603, 604 [2011]). Rivera, J.P., Miller, Hinds-Radix and Maltese, JJ., concur.