Opinion
07-05-2017
The PEOPLE, etc., respondent, v. Stacy STRICKLIN, appellant.
Lynn W.L. Fahey, New York, NY (DeNice Powell of counsel), for appellant, and appellant pro se. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Rhea A. Grob, and Avshalom Yotam of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (DeNice Powell of counsel), for appellant, and appellant pro se.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Rhea A. Grob, and Avshalom Yotam of counsel), for respondent.
MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LaSALLE, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (D'Emic, J.), rendered May 15, 2013, convicting him of murder in the second degree, after a nonjury trial, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's claim that he was deprived of his constitutional right to 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 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 defendant was deprived of the effective assistance of counsel (see People v. Terrell, 78 A.D.3d 865, 866, 910 N.Y.S.2d 368 ; People v. Morris, 187 A.D.2d 460, 461–462, 590 N.Y.S.2d 104 ; People v. Eason, 160 A.D.2d 1018, 1019, 554 N.Y.S.2d 943 ). Since the defendant's 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. 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 ; People v. Rohlehr, 87 A.D.3d 603, 604, 927 N.Y.S.2d 919 ).
The defendant failed to preserve for appellate review his contention that the prosecutor's questioning of a defense witness about statements made to the police by a nontestifying witness violated the defendant's rights under the Confrontation Clause of the Sixth Amendment of the United States Constitution, as he did not object on that ground (see People v. Currie, 131 A.D.3d 1265, 1266, 16 N.Y.S.3d 866 ; People v. Prince, 128 A.D.3d 987, 987, 10 N.Y.S.3d 146 ). In any event, the contention is without merit because the nontestifying witness's statements were not offered as evidence of the truth of the matter asserted therein (see People v. Crawford, 54 A.D.3d 961, 962, 863 N.Y.S.2d 830 ; People v. Algarin, 15 A.D.3d 411, 411, 790 N.Y.S.2d 476 ; People v. Ortiz, 135 A.D.2d 743, 744, 522 N.Y.S.2d 647 ).
The defendant's contention in his pro se supplemental brief that he was deprived of a fair trial because the prosecutor knowingly introduced false testimony, attempted to manipulate defense counsel, and repeatedly questioned witnesses about matter they initially denied having any knowledge of is unpreserved for appellate review and, in any event, without merit (see People v. Schwartzman, 24 N.Y.2d 241, 244, 299 N.Y.S.2d 817, 247 N.E.2d 642 ; People v. Alonso, 91 A.D.3d 663, 665–666, 936 N.Y.S.2d 250 ; People v. Smith, 248 A.D.2d 148, 670 N.Y.S.2d 762 ).
The defendant's contention in his pro se supplemental brief that the People withheld Rosario material is also unpreserved for appellate review (see People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 ; People v. Jacobs, 71 A.D.3d 693, 693, 894 N.Y.S.2d 908 ; People v. Swinson, 227 A.D.2d 508, 643 N.Y.S.2d 364 ). In any event, the contention is without merit (see CPL 240.44[1] ; 240.45[a][1]; People v. Morrow, 143 A.D.3d 919, 920, 39 N.Y.S.3d 232 ).
Finally, contrary to the defendant's contention in his pro se supplemental brief, the Supreme Court, despite its earlier Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ), properly permitted the prosecutor to enter one of the defendant's prior convictions into evidence for the limited purpose of determining whether that conviction affected the defense expert's opinion. The evidence contradicted the defendant's self-reported legal history, upon which the expert partly relied in formulating his opinion (see People v. Fardan, 82 N.Y.2d 638, 645–647, 607 N.Y.S.2d 220, 628 N.E.2d 41 ). To the extent the defendant argues that the prosecutor's questioning of the defense expert went beyond the bounds of the Sandoval ruling, the defendant failed to preserve his contention for appellate review by raising a specific objection to that effect before the court, and, in any event, any error resulting from that questioning was harmless (see People v. Crimmins, 36 N.Y.2d 230, 240–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Ellis, 138 A.D.3d 1136, 1136–1137, 28 N.Y.S.3d 912 ).