PEOPLE v. MAITLAND (2018)

Judgment, Supreme Court, Bronx County (Margaret L. Clancy, J.), rendered June 9, 2015, as amended June 23, 2015, convicting defendant, after a nonjury trial, of rape in the third degree (four counts), criminal sexual act in the third degree (two counts) and endangering the welfare of a child, and sentencing him to an aggregate term of three years, unanimously affirmed.

Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];  People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ).  Accordingly, because defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claim may not be addressed on appeal.  In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under both the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ), particularly in the context of a nonjury trial.  Defendant has not established that his counsel's cross-examination of a forensic examiner was either unreasonable or prejudicial, or that he was entitled to a missing witness charge.

Defendant's contention that certain counts were multiplicitous is unpreserved and we decline to review it in the interests of justice.  Alternatively, we find that the challenged counts were not multiplicitous, and that no corrective action need be taken in any event because the court sentenced defendant to concurrent terms of imprisonment.