Opinion
2015-03-25
The PEOPLE, etc., respondent, v. Earnest STOKES, appellant.
Lynn W.L. Fahey, New York, N.Y. (Lauren E. Jones of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Daniel Bresnahan of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Lauren E. Jones of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Daniel Bresnahan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered October 18, 2011, convicting him of 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 the evidence ( see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), 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 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). 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 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
The defendant failed to lay a proper foundation for the admission into evidence of a prior inconsistent statement made by the complainant. Thus, the trial court properly refused to allow the defendant to introduce the statement into evidence ( see People v. Duncan, 46 N.Y.2d 74, 80–81, 412 N.Y.S.2d 833, 385 N.E.2d 572; People v. Sawyer, 304 A.D.2d 775, 776, 757 N.Y.S.2d 766; People v. Sutton, 209 A.D.2d 456, 457, 619 N.Y.S.2d 575).
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 A.D.3d 1108, 1109, 933 N.Y.S.2d 386; see People v. Wesley, 85 A.D.3d 672, 673, 926 N.Y.S.2d 89). 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. Granger, 122 A.D.3d 940, 942, 997 N.Y.S.2d 466; People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314).
The defendant's remaining contentions are unpreserved for appellate review, and we decline to review them in the exercise of our interest of justice jurisdiction. RIVERA, J.P., CHAMBERS, MILLER and DUFFY, JJ., concur.