Opinion
2017–03759 Ind. No. 6491/15
06-19-2019
The PEOPLE, etc., Respondent, v. Ali AHMED, Appellant.
Robert Marinelli, New York, NY, for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jean M. Joyce, and Terrence F. Heller of counsel), for respondent.
Robert Marinelli, New York, NY, for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jean M. Joyce, and Terrence F. Heller of counsel), for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the Supreme Court, Kings County (Michael A. Gary, J.), rendered March 16, 2017, convicting him of attempted assault in the first degree (two counts) and assault in the second degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was convicted, upon a jury verdict, of two counts of attempted assault in the first degree and two counts of assault in the second degree. Prior to sentencing, the defendant moved to set aside the verdict pursuant to CPL 330.30(1) on the ground of ineffective assistance of counsel. The Supreme Court denied the defendant's motion.
The defendant's contention that he was deprived of a fair trial as a result of certain comments made by the prosecutor during his opening statement and summation is unpreserved for appellate review (see CPL 470.05[2] ; People v. Romero , 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ; People v. Bonds , 118 A.D.3d 717, 719, 987 N.Y.S.2d 428 ). In any event, the defendant's contention is without merit. The comments made by the prosecutor in his opening statement, primarily, described what the People intended to prove and properly prepared the jury to resolve the factual issues at the trial (see People v. Warden , 166 A.D.3d 817, 819, 87 N.Y.S.3d 307 ; People v. Bonds , 118 A.D.3d at 719, 987 N.Y.S.2d 428 ; People v. Umoja , 70 A.D.3d 867, 868, 894 N.Y.S.2d 159 ). Absent bad faith or undue prejudice, a trial will not be undone by a prosecutor's failure to prove every statement made in his or her opening statement (see People v. De Tore , 34 N.Y.2d 199, 207, 356 N.Y.S.2d 598, 313 N.E.2d 61 ; People v. Miles , 157 A.D.3d 641, 641–642, 70 N.Y.S.3d 189 ; People v. Umoja , 70 A.D.3d at 868, 894 N.Y.S.2d 159 ). Moreover, most of the challenged remarks on summation were either fair comment on the evidence and the reasonable inferences to be drawn therefrom or constituted a fair response to defense counsel's summation (see People v. Ashwal , 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. Mairs , 157 A.D.3d 818, 820, 66 N.Y.S.3d 635 ; People v. King , 144 A.D.3d 1176, 1177, 41 N.Y.S.3d 751 ; People v. Almonte , 23 A.D.3d 392, 394, 806 N.Y.S.2d 95 ). To the extent that some of the prosecutor's remarks were improper, they were not so flagrant or pervasive so as to deny the defendant a fair trial (see People v. Tavarez , 135 A.D.3d 973, 973, 23 N.Y.S.3d 395 ; People v. Murphy , 133 A.D.3d 690, 691, 20 N.Y.S.3d 127 ; People v. Joubert , 125 A.D.3d 686, 686, 999 N.Y.S.2d 552 ; People v. Almonte , 23 A.D.3d 392, 394, 806 N.Y.S.2d 95 ), and any prejudicial impact of the prosecutor's remarks was alleviated by the court's instructions to the jury (see People v. Baker , 14 N.Y.3d 266, 274, 899 N.Y.S.2d 733, 926 N.E.2d 240 ; People v. Daniels , 145 A.D.3d 1030, 1031, 42 N.Y.S.3d 856 ; People v. Murphy , 133 A.D.3d at 691, 20 N.Y.S.3d 127 ).
The defendant's contention that he was deprived of the effective 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 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see People v. Evans , 16 N.Y.3d 571, 575 n2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). Since the defendant's claim of ineffective assistance of counsel 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, and we decline to review the claim on this direct appeal (see People v. Freeman , 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ; People v. Maxwell , 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ). To the extent the defendant raised this issue in a motion pursuant to CPL 330.30(1), the motion was procedurally defective, as a CPL 330.30 motion is limited to grounds appearing in the record (see CPL 330.30[1] ; People v. Freire , 168 A.D.3d 973, 975, 92 N.Y.S.3d 115 ; People v. Thomas , 71 A.D.3d 1061, 1062, 897 N.Y.S.2d 244 ; People v. Ai Jiang , 62 A.D.3d 515, 516, 880 N.Y.S.2d 12 ).
RIVERA, J.P., ROMAN, HINDS–RADIX and DUFFY, JJ., concur.