Opinion
2014-11-5
The PEOPLE, etc., respondent, v. Harry DORVILIER, appellant. The People, etc., respondent, v. Harry's Nurses Registry, Inc., appellant.
Meissner, Kleinberg & Finkel, LLP, New York, N.Y. (Richard A. Finkel of counsel), for appellants. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Christopher J. Blira–Koessler of counsel), for respondent.
Meissner, Kleinberg & Finkel, LLP, New York, N.Y. (Richard A. Finkel of counsel), for appellants. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Christopher J. Blira–Koessler of counsel), for respondent.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
Appeals by the defendants from two respective judgments of the Supreme Court, Queens County (Blumenfeld, J.) (one as to each of them), both rendered October 4, 2012, convicting each of them of grand larceny in the third degree (2 counts each) and grand larceny in the fourth degree (11 counts each), upon a jury verdict, and imposing sentences.
ORDERED that the judgments are affirmed.
The defendants' contention that the verdict was repugnant is unpreserved for appellate review, as they failed to raise this issue before the discharge of the jury ( see People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280; People v. Boley, 116 A.D.3d 965, 966, 983 N.Y.S.2d 830; People v. Jackson, 101 A.D.3d 1153, 956 N.Y.S.2d 508; People v. Shamsiddeen, 98 A.D.3d 694, 949 N.Y.S.2d 783), and, in any event, is without merit.
The qualification of a witness to testify as an expert is a matter that rests in the sound discretion of the trial court, and the court's determination should not be disturbed on appeal in the absence of a serious mistake, an error of law, or an improvident exercise of discretion ( see Meiselman v. Crown Hgts. Hosp., 285 N.Y. 389, 398–399, 34 N.E.2d 367; Felicia v. Boro Crescent Corp., 105 A.D.3d 697, 698, 964 N.Y.S.2d 158; Riccio v. NHT Owners, LLC, 79 A.D.3d 998, 1000, 914 N.Y.S.2d 238; de Hernandez v. Lutheran Med. Ctr., 46 A.D.3d 517, 850 N.Y.S.2d 460; Steinbuch v. Stern, 2 A.D.3d 709, 710, 770 N.Y.S.2d 106). “The competence of an expert in a particular subject may derive from long observation and real world experience, and is not dependent upon formal training or attainment of an academic degree in the subject” (Miele v. American Tobacco Co., 2 A.D.3d 799, 802, 770 N.Y.S.2d 386; see Caprara v. Chrysler Corp., 52 N.Y.2d 114, 121, 436 N.Y.S.2d 251, 417 N.E.2d 545; Meiselman v. Crown Hgts. Hosp., 285 N.Y. at 398, 34 N.E.2d 367; Felicia v. Boro Crescent Corp., 105 A.D.3d 697, 698, 964 N.Y.S.2d 158; McLamb v. Metropolitan Suburban Bus Auth., 139 A.D.2d 572, 573, 527 N.Y.S.2d 73). Here, the Supreme Court did not improvidently exercise its discretion in allowing the People's witness to testify as an expert on the subject of the requirements, restrictions, and prohibitions of the Workers' Compensation Law. Moreover, the court providently exercised its discretion in determining the admissibility and scope of the expert's testimony ( see People v. Williams, 20 N.Y.3d 579, 584, 964 N.Y.S.2d 483, 987 N.E.2d 260; People v. Lee, 96 N.Y.2d 157, 162, 726 N.Y.S.2d 361, 750 N.E.2d 63; People v. Hill, 85 N.Y.2d 256, 261, 624 N.Y.S.2d 79, 648 N.E.2d 455; De Long v. County of Erie, 60 N.Y.2d 296, 307, 469 N.Y.S.2d 611, 457 N.E.2d 717), which, here, was helpful in clarifying issues beyond the ken of the typical juror ( see People v. Diaz, 20 N.Y.3d 569, 575, 965 N.Y.S.2d 738, 988 N.E.2d 473; People v. Williams, 20 N.Y.3d at 584, 964 N.Y.S.2d 483, 987 N.E.2d 260; People v. Rivers, 18 N.Y.3d 222, 228, 936 N.Y.S.2d 650, 960 N.E.2d 419; People v. Hill, 85 N.Y.2d at 261, 624 N.Y.S.2d 79, 648 N.E.2d 455; De Long v. County of Erie, 60 N.Y.2d at 307, 469 N.Y.S.2d 611, 457 N.E.2d 717).
The defendants' contention that they were 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, quoting People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457). In this case, it is not evident from the matter appearing on the record that the defendants were deprived of the effective assistance of counsel ( cf. People v. Crump, 53 N.Y.2d 824, 825, 440 N.Y.S.2d 170, 422 N.E.2d 815; People v. Brown, 45 N.Y.2d 852, 853–854, 410 N.Y.S.2d 287, 382 N.E.2d 1149). Since the defendants' 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 ( 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).
The defendants' remaining contention is unpreserved for appellate review, and, in any event, without merit.