PEOPLE v. HYMES (2020)

OPINION OF THE COURT

 MEMORANDUM.

The order of the Appellate Division should be affirmed.  Initially, defendant asserts that County Court erroneously admitted certain testimony regarding the victim's out-of-court disclosures of sexual abuse, and failed to instruct the jury that such evidence could be considered only for the “purpose of explaining the investigative process and completing the narrative of events leading to the defendant's arrest” (People v. Ludwig, 24 N.Y.3d 221, 231, 997 N.Y.S.2d 351, 21 N.E.3d 1012 [2014];  see People v. Cullen, 24 N.Y.3d 1014, 1016, 997 N.Y.S.2d 348, 21 N.E.3d 1009 [2014]).  Because defendant did not object on either basis before the trial court, we conclude that these arguments are unpreserved and, therefore, unreviewable by this Court (see CPL 470.05[2];  People v. Bayne, 82 N.Y.2d 673, 676, 601 N.Y.S.2d 464, 619 N.E.2d 401 [1993];  People v. West, 56 N.Y.2d 662, 663, 451 N.Y.S.2d 711, 436 N.E.2d 1313 [1982];  compare People v. Smith, 22 N.Y.3d 462, 465, 982 N.Y.S.2d 809, 5 N.E.3d 972 [2013]).  Furthermore, on this record, defendant has failed to satisfy his burden of demonstrating “the absence of strategic or other legitimate explanations” for trial counsel's failure to lodge an objection to the testimony now challenged on appeal or to seek a limiting instruction with respect to such testimony (People v. Honghirun, 29 N.Y.3d 284, 289, 78 N.E.3d 804 [2017] [internal quotation marks and citations omitted];  see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988]).  Therefore, defendant's claim of ineffective assistance of counsel on this direct appeal must be rejected.  To the extent defendant wishes to advance such a claim based upon matters outside the record, he may commence a proceeding pursuant to CPL 440.10 (see People v. Mendoza, 33 N.Y.3d 414, 419 n., 104 N.Y.S.3d 38, 128 N.E.3d 165 [2019];  People v. Brown, 45 N.Y.2d 852, 853–854, 410 N.Y.S.2d 287, 382 N.E.2d 1149 [1978]).

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, in a memorandum.

Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur.