PEOPLE v. SWINSON (2006)

Judgment, Supreme Court, New York County (Charles J. Tejada, J.), rendered May 20, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 1/212 to 9 years, unanimously affirmed.

The verdict was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning credibility (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112 [1903] ).

 The court properly denied defendant's request for missing witness charges as to various police officers who did not witness the drug transaction, and who played peripheral roles in the case.   Defendant's assertion that these officers could have provided material, noncumulative testimony is speculative (see People v. Macana, 84 N.Y.2d 173, 180, 615 N.Y.S.2d 656, 639 N.E.2d 13 [1994] ).

Defendant's challenge to the court's reasonable doubt charge requires preservation (see People v. Thomas, 50 N.Y.2d 467, 429 N.Y.S.2d 584, 407 N.E.2d 430 [1980] ), and we decline to review this unpreserved claim in the interest of justice.   Were we to review this claim, we would find no basis for reversal (see People v. Antommarchi, 80 N.Y.2d 247, 251-252, 590 N.Y.S.2d 33, 604 N.E.2d 95 [1992] ).

 Defendant's claim that he was deprived of effective, conflict-free assistance of counsel involves matters outside the record and is thus unreviewable on direct appeal (see People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ).   The existing record does not establish that a conflict existed at the time of trial, or that it operated to defendant's detriment or had a substantial relation to the conduct of his defense (see Cuyler v. Sullivan, 446 U.S. 335, 348-350, 100 S.Ct. 1708, 64 L.Ed.2d 333 [1980];  People v. Harris, 99 N.Y.2d 202, 210-211, 753 N.Y.S.2d 437, 783 N.E.2d 502 [2002] ).   Moreover, the court addressed any possible problem by providing defendant with a reasonable opportunity to discharge his retained counsel and hire new counsel;  the record does not indicate that defendant qualified for assigned counsel.