Opinion
2014-07277. Ind. No. 538/09.
08-16-2017
The PEOPLE, etc., respondent, v. Ynmaculada GOMEZ, appellant.
Lynn W.L. Fahey, New York, NY (Yvonne Shivers of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Yvonne Shivers of counsel), for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Nancy Fitzpatrick Talcott of counsel), for respondent.
RUTH C. BALKIN, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.), rendered July 14, 2014, convicting her of murder in the second degree, criminal possession of a weapon in the second degree (two counts), and tampering with physical evidence, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that she was deprived of a fair trial by improper remarks made by the Supreme Court to prospective jurors during voir dire is without merit. While some of the court's remarks were inappropriate, those remarks do not warrant reversal (see People v. Mason, 132 A.D.3d 777, 17 N.Y.S.3d 768 ; People v. Bailey, 66 A.D.3d 491, 889 N.Y.S.2d 1 ; People v. Daniel, 37 A.D.3d 731, 830 N.Y.S.2d 319 ).
The defendant's challenge to the legal sufficiency of the evidence supporting her conviction of tampering with physical evidence is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of that crime beyond a reasonable doubt.
Contrary to the defendant's contention, the Supreme Court did not err in admitting evidence of certain prior bad acts committed by her. The evidence was relevant to establish the defendant's motive and intent to murder the victim, and provided necessary background information on the nature of the relationship between the defendant and the victim (see People v. Gamble, 18 N.Y.3d 386, 398, 941 N.Y.S.2d 1, 964 N.E.2d 372 ; People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 ; People v. Wisdom, 120 A.D.3d 724, 725–726, 991 N.Y.S.2d 141 ). Further, the court providently exercised its discretion in determining that the probative value of the evidence outweighed any potential prejudice to the defendant (see People v. Gamble, 18 N.Y.3d at 398, 941 N.Y.S.2d 1, 964 N.E.2d 372 ; People v. Wisdom, 120 A.D.3d at 726, 991 N.Y.S.2d 141 ), and it gave a sufficient limiting instruction regarding the use the jury could make of the evidence, which the jury is presumed to have followed (see People v. Curran, 139 A.D.3d 1085, 33 N.Y.S.3d 334 ; People v. Jean, 127 A.D.3d 882, 4 N.Y.S.3d 905 ).
The defendant contends that she was deprived of a fair trial by certain remarks made by the prosecutor during his summation. However, most of the challenged remarks constituted a fair response to arguments made by defense counsel during summation, or constituted fair comment on the evidence, and did not denigrate the defense (see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. Izurieta, 116 A.D.3d 881, 983 N.Y.S.2d 433 ; People v. Bartolomeo, 126 A.D.2d 375, 390, 513 N.Y.S.2d 981 ). Further, the Supreme Court properly sustained the defendant's objections to certain improper comments and corrected any possible prejudice by issuing curative instructions (see People v. Davis, 128 A.D.2d 800, 513 N.Y.S.2d 500 ). To the extent that some of the prosecutor's other comments were improper, any error was not so egregious as to have deprived the defendant of a fair trial (see People v. Portes, 125 A.D.3d 794, 4 N.Y.S.3d 97 ; People v. Stevens,
114 A.D.3d 969, 970, 980 N.Y.S.2d 841 ; People v. Tiro, 100 A.D.3d 663, 952 N.Y.S.2d 893 ).
The defendant's contentions, raised in her main brief and in Point I of her pro se supplemental brief, that she was deprived of the effective assistance of counsel are 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, 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 defendant was deprived of the effective assistance of counsel (cf. People v. Crump, 53 N.Y.2d 824, 440 N.Y.S.2d 170, 422 N.E.2d 815 ; People v. Brown, 45 N.Y.2d 852, 410 N.Y.S.2d 287, 382 N.E.2d 1149 ). 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 (see People v. Freeman, 93 A.D.3d 805, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions, including the remaining contentions raised in her pro se supplemental brief, are without merit.