| People v Picart |
| 2019 NY Slip Op 02561 [171 AD3d 799] |
| April 3, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Juan Picart, Appellant. |
Clement S. Patti, Jr., White Plains, NY, for appellant, and appellant pro se.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (William C. Milaccio andSteven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Barry E.Warhit, J.), rendered November 9, 2016, as amended February 15, 2017, convicting him ofattempted murder in the second degree, assault in the first degree, criminal possession of aweapon in the second degree, and criminal possession of a firearm, upon a jury verdict, andimposing sentence.
Ordered that the judgment, as amended, is affirmed.
The defendant was indicted for attempted murder in the second degree and other crimesrelated to a June 1, 2015, shooting of the complainant in a Westchester County delicatessen.Following a jury trial, the defendant was convicted of attempted murder in the second degree andassault in the first degree for the shooting. The defendant was also convicted of criminalpossession of a weapon in the second degree and criminal possession of a firearm for his June 22,2015, possession of the gun that had been used in the shooting. The gun was recovered from anapartment in which the defendant had been staying, during a search conducted with the consentof the apartment owner.
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 criminal possession of a weapon in the second degree and criminalpossession of a firearm beyond a reasonable doubt. Contrary to the defendant's contention, theevidence was legally sufficient to establish, beyond a reasonable doubt, that he exerciseddominion or control over the area in which the gun was found such that he constructivelypossessed the firearm (see People vMuhammad, 16 NY3d 184, 188 [2011]; People v DeCapua, 151 AD3d 1746, 1747 [2017]; People vMangarella, 190 AD2d 757, 757 [1993]; see also Penal Law § 10.00[8]). Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfied thatthe verdict of guilt as to those crimes was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
Contrary to the defendant's contention, the County Court providently exercised its discretionin denying his request for a missing witness charge with respect to the complainant. Thecomplainant, through his lawyer, refused to testify despite having been subpoenaed and was notunder the People's control (see People v Savinon, 100 NY2d 192, 197-200 [2003]; People v Mobley, 77 AD3d 488,489 [2010]; People v Washington,21 AD3d 648, 649 [2005]; People v Mulero, 229 AD2d 402, 403 [1996]).
The defendant's contention that the County Court erred in allowing references to the gangaffiliation of the complainant and another man in the delicatessen is unpreserved for appellatereview (see CPL 470.05 [2]). Moreover, the defendant partially waived this contention byaffirmatively using evidence of the complainant's gang affiliation in his cross-examination of thewitnesses and in summation as part of his defense strategy (see People v Holmes, 47 AD3d 946, 946 [2008]; People v Blackman, 13 AD3d640, 641 [2004]). In any event, the defendant was not deprived of a fair trial by theadmission of the challenged evidence (cf. People v Cheatham, 158 AD2d 934, 935[1990]), and any other error in its admission was harmless, as there was overwhelming evidenceof the defendant's guilt, and no significant probability that the error contributed to the defendant'sconvictions (see People v Crimmins, 36 NY2d 230, 241-242 [1975]).
The defendant's contention, made in his pro se supplemental brief, that he was deprived ofthe effective assistance of counsel is based, in part, on matter dehors the record, and thus,constitutes a "mixed claim" of ineffective assistance of counsel (People v Maxwell, 89 AD3d 1108,1109 [2011]). 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 the appropriate forumfor reviewing the claim in its entirety (see People v Benson, 164 AD3d 911, 912 [2018]; People v Crosby, 133 AD3d 681,682 [2015]).
The defendant's contention, made in his pro se supplemental brief, that the County Courterred in denying his request for a Dunaway hearing (see Dunaway v New York,442 US 200 [1979]) is academic, since the court suppressed the defendant's statement to policeon another ground, and there were no identifications made or physical evidence seized as a resultof the arrest (see generally People vJones, 2 NY3d 235, 244 [2004]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, are without merit. Scheinkman, P.J., Rivera, Hinds-Radix and Barros, JJ., concur.