| People v Warden |
| 2018 NY Slip Op 07762 [166 AD3d 817] |
| November 14, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Terrance Warden, Appellant. |
Paul Skip Laisure, New York, NY (Laura B. Tatelman and Laura Indellicati ofcounsel), for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Joseph N. Ferdenzi, Joseph Z. Amsel, and John F. McGoldrick ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Richard L. Buchter, J.), rendered July 6, 2015, convicting him of assault in the seconddegree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing (John B. Latella, Jr., J.), of that branch of the defendant's omnibusmotion which was to suppress statements he made to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant was convicted of assault in the second degree (Penal Law§ 120.05 [12]), upon a jury verdict. The victim, who suffered fromdementia, did not testify at trial, and there were no eyewitnesses to the assault. However,other evidence and testimony established that the defendant and the victim were patientssharing a hospital room when the victim, who was 75 years old and more than 10 yearsolder than the defendant, sustained an injury to his face, which included a laceration andfractures. The trial testimony also established that at the time of the incident, the patientin the next room heard yelling and punching sounds, and when she went to investigate,she saw only the injured victim and the defendant in the room. In addition, testimony andevidence admitted at trial established that the defendant made inculpatory statements,inter alia, to the effect that he hit the victim because the victim hit him first.
The defendant moved to suppress certain statements he made at the hospital inresponse to questioning by a police officer. We agree with the Supreme Court'sdetermination denying that branch of the defendant's omnibus motion which was tosuppress the challenged statements. The evidence presented at the suppression hearingsupported the court's determination that a reasonable person, innocent of any crime,would not have believed that he was in police custody when the statements were made(see People v Yukl, 25 NY2d 585, 589 [1969]; People v Adams, 157 AD3d897, 898 [2018]; People vRagen, 140 AD3d 1092, 1092 [2016]; People v Ripic, 182 AD2d 226,231 [1992]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of [*2]assault in the second degreebeyond a reasonable doubt (see Penal Law § 120.05 [12]; People v Reed, 22 NY3d530, 535 [2014]). Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear testimony, and observe demeanor (see People v Mateo, 2NY3d 383 [2004]; People v Bleakley, 69 NY2d 490 [1987]). Upon reviewing therecord here, we are satisfied that the verdict of guilt was not against the weight of theevidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant's contention that he was deprived of a fair trial by remarks made bythe prosecutor during his opening and closing statements that improperly appealed to thejurors' sympathies is largely unpreserved for appellate review (see CPL 470.05[2]; People v Romero, 7NY3d 911, 912 [2006]). In any event, the defendant's contention is without merit.The defendant was not deprived of a fair trial by the challenged remarks made during theprosecutor's opening statement, as those remarks described what the People intended toprove and properly prepared the jury to resolve the factual issues at the trial (see People v Bonds, 118 AD3d717, 719 [2014]; People vUmoja, 70 AD3d 867, 868 [2010]; People v Etoria, 266 AD2d 559, 559[1999]). Moreover, the defendant was not deprived of a fair trial by the challengedremarks made during the prosecutor's closing statement, as most of those remarks werefair comment on the evidence and reasonable inferences to be drawn therefrom (seePeople v Ashwal, 39 NY2d 105, 109 [1976]; People v Mairs, 157 AD3d 818, 820 [2018]; People v King, 144 AD3d1176, 1177 [2016]; Peoplev Almonte, 23 AD3d 392, 394 [2005]). To the extent that some of thechallenged remarks during summation exceeded the bounds of legitimate advocacy, theywere not so flagrant or pervasive so as to deprive the defendant of a fair trial (see People v Tavarez, 135AD3d 973, 973 [2016]; People v Murphy, 133 AD3d 690, 691 [2015]; People v Joubert, 125 AD3d686, 686 [2015]; People vAlmonte, 23 AD3d 392, 394 [2005]).
The defendant's contention that he was deprived of the effective assistance ofcounsel is based, in part, on matter appearing on the record and, in part, on matter outsidethe record and, thus, constitutes a "mixed claim" of ineffective assistance (People v Maxwell, 89 AD3d1108, 1109 [2011]; seePeople v Evans, 16 NY3d 571, 575 n 2 [2011]; People v Kocaj, 160 AD3d766 [2018]). In this case, it is not evident from the matter appearing on the recordthat the defendant was deprived of the effective assistance of counsel (see People vEvans, 16 NY3d at 575; cf. People v Crump, 53 NY2d 824, 825 [1981]).Since the defendant's claim of ineffective assistance of counsel cannot be resolvedwithout reference to matter outside the record, a CPL 440.10 proceeding is theappropriate forum for reviewing the claim of ineffectiveness in its entirety (see People v Kocaj, 160 AD3d766 [2018]; People vMarryshow, 135 AD3d 964, 965 [2016]; People v Maxwell, 89 AD3d at1109).
The defendant's contentions, raised in his pro se supplemental brief, that the SupremeCourt erred in admitting unredacted medical records into evidence, permitting certainwitnesses to provide in-court identifications, and denying defense counsel's motion for amistrial, are without merit.
The defendant's remaining contentions, raised in his pro se supplemental brief,involve matter that is dehors the record, and, therefore, cannot be considered on thisappeal. Mastro, J.P., Cohen, Hinds-Radix and Iannacci, JJ., concur.