PEOPLE v. THOMAS (2019)

Judgment, Supreme Court, New York County (Gilbert C. Hong, J.), rendered May 19, 2017, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second violent felony offender, to a term of 15 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]).  Moreover, the evidence of guilt was overwhelming.  In particular, there was ample evidence that defendant swung a small knife at the victim and that this knife was a dangerous instrument because “under the circumstances in which it [was] used, attempted to be used or threatened to be used, [it was] readily capable of causing death or other serious physical injury” (Penal Law § 10.00[13]).

The challenged portions of the People's summation generally constituted fair comment on the evidence, and reasonable inferences to be drawn therefrom, in response to defense arguments, and there was nothing so egregious as to require reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998]; People v. D'Alessandro, 184 A.D.2d 114, 118–120, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993]). To the extent there were any improprieties, any error was harmless in light of the overwhelming evidence of guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]).

The court providently exercised its discretion in admitting testimony about the victim's 911 call.  This testimony was properly admitted as background to explain police actions leading to the arrest (see e.g. People v. Barnes, 57 A.D.3d 289, 868 N.Y.S.2d 663 [1st Dept. 2008], lv denied 12 N.Y.3d 781, 879 N.Y.S.2d 57, 906 N.E.2d 1091 [2009]; People v. Nieves, 294 A.D.2d 152, 152–153, 741 N.Y.S.2d 406 [1st Dept. 2002], lv denied 98 N.Y.2d 700, 747 N.Y.S.2d 419, 776 N.E.2d 8 [2002]).  In any event, any error was harmless (see People v. Ludwig, 24 N.Y.3d 221, 230, 997 N.Y.S.2d 351, 21 N.E.3d 1012 [2014]).

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, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims 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 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]).  Defendant has not shown that counsel's alleged error fell below an objective standard of reasonableness or that it deprived defendant of a fair trial or affected the outcome of the case.

We perceive no basis for reducing the sentence.