| People v Freire |
| 2019 NY Slip Op 00460 [168 AD3d 973] |
| January 23, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Howard Freire, Appellant. |
Paul Skip Laisure, New York, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Nancy Fitzpatrick Talcott, and Jonathan K. Yi of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (JohnLatella, J.), rendered March 3, 2014, convicting him of robbery in the first degree, robbery in thesecond degree (two counts), attempted robbery in the second degree, assault in the second degree(two counts), criminal possession of a weapon in the fourth degree, criminal possession of stolenproperty in the fifth degree, and menacing in the second degree, upon a jury verdict, andsentencing him, as a persistent violent felony offender, inter alia, to an indeterminate term of 25years to life imprisonment on the conviction of robbery in the first degree, with all of thesentences to run concurrently with each other. By decision and order dated January 31, 2018, thisCourt remitted the matter to the Supreme Court, Queens County, for further proceedings on thedefendant's motion pursuant to CPL 330.30 to set aside the verdict based upon alleged ineffectiveassistance of counsel, and, thereafter, for the issuance of a report of its findings with respect tothe motion, and the appeal was held in abeyance in the interim (see People v Freire, 157 AD3d 963[2018]). The Supreme Court, Queens County, has filed its report.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the sentence imposed on the conviction of robbery in the first degree from anindeterminate term of 25 years to life imprisonment to an indeterminate term of 20 years to lifeimprisonment; as so modified, the judgment is affirmed.
The defendant was convicted, upon a jury verdict, of robbery in the first degree and otheroffenses. Prior to sentencing, the defendant's trial counsel moved pursuant to CPL 330.30 to setaside the verdict as against the weight of the evidence. The Supreme Court denied the motion.However, the defendant's trial counsel subsequently informed the Supreme Court that thedefendant had moved, pro se, pursuant to CPL 330.30 to set aside the verdict on the ground ofineffective assistance of counsel. At the sentencing hearing, the defendant's trial counselinformed the Supreme Court that, upon reviewing the motion, he did not adopt it. The SupremeCourt declined to review the motion on the basis that it determined that the defendant was notentitled to "hybrid representation." On appeal, this Court held the appeal in abeyance, remittedthe matter to the Supreme Court for further proceedings on the defendant's motion, and directedthe defendant's appellate counsel to represent the defendant on the motion. Upon remittal fromthis Court, the Supreme Court denied the defendant's motion.
Pursuant to CPL 330.30 (1), the court, upon motion of the defendant, may set aside ormodify the verdict, upon, inter alia, "[a]ny ground appearing in the record which, if raised uponan appeal from a prospective judgment of conviction, would require a reversal or modification ofthe judgment as a matter of law by an appellate court." Contrary to the defendant's contention, theSupreme Court was not required to conduct a hearing with respect to his motion (see People v Strong, 70 AD3d 865,866 [2010]; People v Gruttadauria,46 AD3d 837, 837-838 [2007]).
Moreover, we agree with the Supreme Court's determination denying appellate counsel'sapplication for an adjournment in order to investigate the contentions made in the defendant'smotion. A motion pursuant to CPL 330.30 (1) is limited to grounds which appear in the record(see People v Giles, 24 NY3d1066, 1068 [2014]; People vMcClassling, 143 AD3d 528, 529 [2016]), and the facts that appellate counsel sought toinvestigate were dehors the record.
Similarly, we agree with the Supreme Court's determination denying the defendant's motion.The defendant's contention that he was deprived of his right to the effective assistance of counselis based, in part, on matter appearing on the record and, in part, on matter outside the record.Since it was not evident from matter appearing on the record that the defendant was deprived ofthe right to the effective assistance of counsel, in order to resolve the defendant's claim ofineffective assistance of counsel, the court would have been required to consider matter outsidethe record (see People v Crump, 53 NY2d 824 [1981]; People v Freeman, 93 AD3d 805,806 [2012]). Accordingly, the defendant was not entitled to relief pursuant to CPL 330.30 (1) (see People v Heron, 130 AD3d754, 755 [2015]). Rather, a CPL 440.10 proceeding is the appropriate forum for reviewingthe ineffective assistance claim in its entirety (see People v Freeman, 93 AD3d at806).
The defendant's contention that he was deprived of a fair trial due to improper remarks madeby the Supreme Court to prospective jurors during voir dire is unpreserved for appellate review(see CPL 470.05 [2]; People vWilson, 163 AD3d 881, 881 [2018]; People v Prokop, 155 AD3d 975, 976 [2017]; People v Mason, 132 AD3d 777,779 [2015]). Contrary to the defendant's contention, the court's conduct did not constitute a modeof proceedings error exempting him from the rules of preservation (see People v Brown, 7 NY3d 880,881 [2006]; People v Wilson, 163 AD3d at 881; People v Prokop, 155 AD3d at976; People v Mason, 132 AD3d at 779). In any event, while we strongly disapprove ofthe court's conduct in making these inappropriate remarks, under the circumstances of this case,reversal is not warranted (see People v Wilson, 163 AD3d at 881; People vProkop, 155 AD3d at 976; People vPorter, 153 AD3d 857, 858 [2017]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of robbery in the second degree (Penal Law § 160.10) and bothcounts of assault in the second degree (Penal Law § 120.05 [2]) beyond areasonable doubt. Contrary to the defendant's contentions, the evidence was legally sufficient toprove that the victim sustained "physical injury" within the meaning of Penal Law§ 10.00 (9) (see People vChiddick, 8 NY3d 445, 447 [2007]; People v Webster, 140 AD3d 1196, 1197 [2016]; People v Uceta, 127 AD3d 1002,1002 [2015]; People v Martinez,116 AD3d 983, 984 [2014]; Peoplev Jaen, 116 AD3d 975, 975 [2014]).
The defendant's contention that he was deprived of a fair trial as a result of the SupremeCourt's instruction to the jury regarding the People's burden of proving guilt beyond a reasonabledoubt is unpreserved for appellate review (see CPL 470.05 [2]; People v Coles, 62 AD3d 1022,1023 [2009]). In any event, the defendant's contention lacks merit. Where, as here, "the juryinstructions, on the whole, conveyed the correct standard to be employed with respect to theburden of proof, including 'reasonable doubt,' "they are not constitutionally inadequate(People v King, 73 AD3d 1083,1084 [2010]; see People vHoffmann, 122 AD3d 945, 946 [2014]; People v Coles, 62 AD3d at 1023).
The defendant also failed to preserve for appellate review his contention that he was deprivedof a fair trial due to the remarks made by the prosecutor during her opening statement andsummation (see CPL 470.05 [2]; People v Dien, 77 NY2d 885, 886 [1991]; People v Morrow, 143 AD3d 919,921 [2016]; People v Garner, 27AD3d 764, 764 [2006]). To the extent that any of the prosecutor's remarks were improper,they did not rise to the level of egregious misconduct that would have deprived the defendant of afair trial (see People v Mason, 132 AD3d at 778; People v Gomez, 153 AD3d 724, 725-726 [2017]; People v Portes, 125 AD3d 794,794 [2015]).
The sentence imposed was excessive to the extent indicated (see People v Suitte, 90AD2d 80 [1982]). Austin, J.P., Sgroi, LaSalle and Christopher, JJ., concur.