| People v Reeves |
| 2020 NY Slip Op 01191 [180 AD3d 936] |
| February 19, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Robert Reeves, Appellant. |
Paul Skip Laisure, New York, NY (Lisa Napoli of counsel), for appellant, andappellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Keith Dolanof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Deborah Dowling, J.), rendered May 27, 2015, convicting him of murder in the seconddegree and robbery in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004]). Upon reviewing the record here, we are satisfied that the verdict of guilt was notagainst the weight of the evidence (see People v Romero, 7 NY3d 633, 643-644 [2006]).
The defendant's contention that the admission of certain DNA evidence at trialviolated his rights under the Sixth Amendment's Confrontation Clause (see People v John, 27 NY3d294, 309-315 [2016]) is unpreserved for appellate review (see CPL 470.05[2]), and we decline to review this issue in the exercise of our interest of justicejurisdiction (see People vDegracia, 173 AD3d 1199, 1200 [2019]; People v Davis, 171 AD3d 1209, 1209 [2019]).
We agree with the Supreme Court's determination to deny the defendant's request fora missing witness charge, as the People established that the uncalled civilian witness wasunavailable to testify (see People v Gonzalez, 68 NY2d 424, 428 [1986]; People v Lopez, 168 AD3d418, 419 [2019]; People vBinyon, 48 AD3d 473, 473 [2008]). In addition, the defendant's contention inhis pro se supplemental brief that he was entitled to a missing witness charge withrespect to an uncalled assistant district attorney is unpreserved for appellate review(see CPL 470.05 [2]), and, in any event, is without merit (see People vGonzalez, 68 NY2d at 427-428; People v Piedra, 87 AD3d 706, 706 [2011]).
The defendant's contentions in his main brief and his pro se supplemental brief thatcertain remarks made by the prosecutor during summation were improper are, for themost part, unpreserved for appellate review (see CPL 470.05 [2]; People v Mena, 172 AD3d1235, 1236 [2019]; Peoplev Beaupre, 170 AD3d 1031, 1033 [2019]; People v Anaka, 154 AD3d 870, 872 [2017]). In any event,most of the challenged summation remarks were within the bounds of permissiblerhetorical comment, a fair response to statements made by defense counsel, or faircomment on the evidence and reasonable inferences to be drawn therefrom (seePeople v Mena, 172 AD3d at 1236; People v Azor, 172 AD3d 1087, 1087 [2019]). To theextent that some of the challenged remarks were improper, they were not so flagrant orpervasive as to have deprived the defendant of a fair trial (see People v Coleman, 148AD3d 717, 718 [2017]; People v Almonte, 23 AD3d 392, 394 [2005]).
The defendant's contention in his pro se supplemental brief that the prosecutorviolated the disclosure requirements of People v Rosario (9 NY2d 286 [1961])and Brady v Maryland (373 US 83 [1963]) is without merit. Although a witnesstestified that the uncalled assistant district attorney had taken notes during an interview,the prosecutor expressly represented that neither he nor his colleague had done so. Theprosecutor's representation "sufficed to resolve the issue," and the Supreme Court wasentitled to rely on that representation (People v Cole, 196 AD2d 634, 636 [1993];see People v Phillip, 139AD3d 881, 881-882 [2016]; People v Rodriguez, 181 AD2d 841, 841-842[1992]). To the extent the defendant argues that the court should have held a hearing orconducted an in camera review of the prosecution's file before making the thresholdfactual determination of whether any undisclosed Brady or Rosarioinformation existed in the first place (see People v Dockery, 278 AD2d 427,427-428 [2000]), this argument is unpreserved for appellate review (see People vBrown, 286 AD2d 340, 340 [2001]).
The defendant waived his contention, raised in his pro se supplemental brief, that hewas denied the right to testify before the grand jury by failing to move to dismiss theindictment within five days after his arraignment thereon (see CPL 190.50 [5][c]; People v McTerrell, 174AD3d 648, 649 [2019]).
The defendant's contention in his pro se supplemental brief that he was deprived of afair trial based on several additional instances of alleged prosecutorial misconduct is notreviewable on direct appeal since the record contains insufficient evidence for this Courtto review his claim (see CPL 440.10 [2] [b]; People v DeFelice, 164 AD3d 697, 697 [2018]; People v Dixon, 138 AD3d1016, 1017 [2016]; Peoplev English, 119 AD3d 706, 706 [2014]). "The defendant's claim in this regardmay properly be reviewed only in the context of a motion to vacate the judgment ofconviction pursuant to CPL 440.10, which is designed for the purpose of developingmatter dehors the record" (People v Dixon, 138 AD3d at 1017).
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]). Since the defendant's claim ofineffective assistance of counsel cannot be resolved without reference to matter outsidethe record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim inits entirety, and we decline to review the claim on this direct appeal (see People v Freeman, 93AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109). Scheinkman,P.J., Rivera, Balkin and Leventhal, JJ., concur.