| People v Justice |
| 2015 NY Slip Op 02787 |
| Decided on April 1, 2015 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on April 1, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JOHN M. LEVENTHAL
CHERYL E. CHAMBERS
SHERI S. ROMAN, JJ.
2012-06953
(Ind. No. 1601/11)
v
Allah Justice, appellant.
Marianne Karas, Thornwood, N.Y., for appellant.
Madeline Singas, Acting District Attorney, Mineola, N.Y. (Tammy J. Smiley, Robert A. Schwartz, Ezra E. Zonana, and Joseph Mogelnicki of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robbins, J.), rendered December 11, 2012, convicting him of assault in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions (Berkowitz, J.), of the suppression of identification testimony.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the complaining witness's viewing of a surveillance video of the assault did not constitute an identification procedure (see People v Gee, 99 NY2d 158, 162).
The defendant's contention that the evidence was legally insufficient to support his convictions of assault in the second degree and criminal possession of a weapon in the third degree is unpreserved for appellate review (see People v Delgado, 109 AD3d 483). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant's guilt of those crimes beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633).
The defendant's claim of ineffective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and thus, constitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109; see People v Taylor, 98 AD3d 593, 594, affd sub nom. People v Heidgen, 22 NY3d 259). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (cf. People v Crump, 53 NY2d 824; People v Brown, 45 NY2d 852). Since the defendant's [*2]claim of ineffective assistance cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Taylor, 98 AD3d at 594; People v Delancey, 94 AD3d 1015; People v Maxwell, 89 AD3d at 1109).
The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.
DILLON, J.P., LEVENTHAL, CHAMBERS and ROMAN, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court