PEOPLE v. MCKNIGHT (2025)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]) arising from his conduct in stabbing the victim to death in her apartment. As relevant to this appeal, the People called an FBI special agent to testify regarding the results of an analysis of defendant's cell phone, which showed that defendant was in the vicinity of the victim's apartment around the time of the murder. Defendant contends that he was deprived of effective assistance of counsel because defense counsel should have investigated a challenge to the “cell site data analysis” and should have consulted an expert on that topic. Defendant's contention concerns matters outside the record on appeal and must be raised in a motion pursuant to CPL 440.10 (see People v. Keane, 221 A.D.3d 1586, 1588-1589, 198 N.Y.S.3d 471 [4th Dept. 2023]; People v. Howden, 215 A.D.3d 1261, 1262, 186 N.Y.S.3d 777 [4th Dept. 2023], lv denied 40 N.Y.3d 1092, 204 N.Y.S.3d 796, 228 N.E.3d 609 [2024]; see also People v. Defio, 200 A.D.3d 1672, 1674, 159 N.Y.S.3d 600 [4th Dept. 2021], lv denied 38 N.Y.3d 949, 165 N.Y.S.3d 465, 185 N.E.3d 986 [2022]). To the extent that the record before us permits review of defendant's contention, we conclude that it is without merit inasmuch as he failed to demonstrate that opposing expert testimony was available, that it would have assisted County Court in its determination or that he was prejudiced by its absence (see People v. Young, 206 A.D.3d 1631, 1633, 168 N.Y.S.3d 616 [4th Dept. 2022]; People v. Hunter, 202 A.D.3d 1449, 1450, 158 N.Y.S.3d 920 [4th Dept. 2022], lv denied 38 N.Y.3d 1008, 168 N.Y.S.3d 372, 188 N.E.3d 564 [2022]; People v. Finch, 180 A.D.3d 1362, 1363, 117 N.Y.S.3d 415 [4th Dept. 2020], lv denied 35 N.Y.3d 993, 125 N.Y.S.3d 627, 149 N.E.3d 388 [2020]), and failed to demonstrate the absence of a strategic explanation for defense counsel's alleged shortcomings (see People v. Freeman, 206 A.D.3d 1694, 1695, 170 N.Y.S.3d 445 [4th Dept. 2022]; Defio, 200 A.D.3d at 1674, 159 N.Y.S.3d 600; see also People v. Caldavado, 166 A.D.3d 792, 794, 88 N.Y.S.3d 236 [2d Dept. 2018], lv denied 32 N.Y.3d 1170, 121 N.E.3d 262 [2019], cert denied 587 U.S. 987, 139 S.Ct. 2031, 204 L.Ed.2d 218 [2019]).