| People v Mena |
| 2019 NY Slip Op 03993 [172 AD3d 1235] |
| May 22, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jonathan Mena, Appellant. |
Paul Skip Laisure, New York, NY (Dina Zloczower of counsel), for appellant, and appellantpro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Anthea H. Bruffee, andDenise Pavlides of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ann M.Donnelly, J.), rendered May 29, 2013, convicting him of robbery in the first degree, robbery inthe second degree, burglary in the first degree, burglary in the second degree, assault in thesecond degree, and kidnapping in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's contention that certain remarks made by the prosecutor during summationwere improper is, for the most part, unpreserved for appellate review (see CPL 470.05[2]; People v Wilson, 163 AD3d881, 882 [2018]; People vRogers, 161 AD3d 1013, 1015 [2018]). In any event, many of the other challengedsummation remarks were within the bounds of permissible rhetorical comment, a fair response tostatements made by defense counsel, or fair comment on the reasonable inferences to be drawnfrom the evidence (see People v Rogers, 161 AD3d at 1014; People v Blue, 136 AD3d 840[2016]). To the extent that some of the challenged remarks were improper, they were not soflagrant or pervasive as to have deprived the defendant of a fair trial (see People v Coleman, 148 AD3d717, 718 [2017]; People vAlmonte, 23 AD3d 392, 394 [2005]).
The defendant's contentions, including those raised in his pro se supplemental brief, that hewas deprived of the effective assistance of counsel are based, in part, on matter appearing on therecord and, in part, on matter outside the record, and, thus, constitute a "mixed claim ofineffective assistance" (People vMaxwell, 89 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d 571, 575 n 2 [2011]). Since thedefendant's claim of ineffective assistance of counsel cannot be resolved without reference tomatter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing theclaim in its entirety, and we decline to review the claim on this direct appeal (see People v Freeman, 93 AD3d805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).
The defendant's contention in his pro se supplemental brief that he was deprived of a fair trialbecause the prosecutor failed to correct false testimony by prosecution witnesses is based in parton matter outside the record and cannot be reached on direct appeal (see People v King, 161 AD3d 772,775 [2018]; People v Martinez, 287 AD2d 353, 354 [2001]).
Contrary to the defendant's argument raised in his pro se supplemental brief, the Peopleestablished that the police had reasonable suspicion to detain the defendant and that thereasonable suspicion ripened into probable cause to place him under arrest (see People v Lawson, 163 AD3d996, 998-999 [2018]; People vCotsifas, 100 AD3d 1015, 1015 [2012]).
The defendant's remaining contentions raised in his pro se supplemental brief are withoutmerit. Balkin, J.P., Roman, Miller and Christopher, JJ., concur.