| People v Cartagena |
| 2019 NY Slip Op 01652 [170 AD3d 451] |
| March 7, 2019 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Robert Cartagena, Appellant. |
Christina A. Swarns, Office of the Appellate Defender, New York (Joseph M. Nursey ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), forrespondent.
Judgment, Supreme Court, New York County (Thomas A. Farber, J.), rendered April 30,2014, convicting defendant, after a jury trial, of murder in the second degree (two counts),burglary in the first degree and criminal possession of a weapon in the second degree (twocounts), and sentencing him to an aggregate term of 25 years to life, unanimously affirmed.
With two exceptions, the court providently exercised its discretion in admitting Facebookposts and text messages made by a separately tried codefendant. This evidence was relevant tothe codefendant's state of mind (see generally People v Reynoso, 73 NY2d 816, 819[1988]; Jerome Prince, Richardson on Evidence § 8-106 at 502 [Farrell 11th ed1995]), which was in turn relevant to defendant's guilt under the circumstances of the case,including evidence of a shared motive. However, the codefendant's text message announcing thatthe murder at issue was about to be committed, and his Facebook post boasting that it hadsucceeded, exceeded the proper bounds of state-of-mind evidence and should have beenexcluded. Nevertheless, we find that these errors, or any errors regarding evidence of thecodefendant's declarations, were harmless in light of the overwhelming evidence of defendant'sguilt (see People v Crimmins, 36 NY2d 230 [1975]).
Defendant did not preserve his claim regarding the court's failure to deliver a limitinginstruction, as promised, regarding the state-of-mind evidence (see People v Whalen, 59NY2d 273, 280 [1983]), and we decline to review it in the interest of justice. As an alternativeholding, we find that the instruction should have been given, but that its absence was similarlyharmless.
The court providently exercised its discretion in permitting the People to introduce a series oftext messages between defendant and his girlfriend, while redacting a portion of these messagesin which he denied that he had committed the murder. There was no violation of the rule ofcompleteness (see People v Dlugash, 41 NY2d 725, 736 [1977]). The messages that wereintroduced did not contain any admissions, or anything else that needed to be explained by wayof the redacted self-exculpatory messages; instead, the messages in evidence tended to establishother matters, such as a timeline of events. In any event, any error in this regard was alsoharmless.
Defendant's ineffective assistance of counsel claims are unreviewable on direct appealbecause they involve matters of strategy not reflected in, or fully explained by, the record (seePeople v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]).The record does not support defendant's assertion that counsel's colloquies with the court on thematters underlying the ineffectiveness claims sufficed to establish the nature andunreasonableness of counsel's strategy. Accordingly, since defendant has not expanded the recordby means of a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressedon appeal. In the alternative, to the extent the existing record permits review, we find thatdefendant received effective assistance under the state and federal standards (see People vBenevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668[1984]).
We perceive no basis for reducing the sentence. Concur—Renwick, J.P.,Manzanet-Daniels, Tom, Kahn, Gesmer, JJ.