PEOPLE v. LEWIS (2020)

Judgment, Supreme Court, New York County (Jill Konviser, J.), rendered September 12, 2017, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a term of six years, unanimously affirmed.

The verdict 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] ).  There is no basis to disturb the jury's credibility findings.  We note that “[o]ur review of the ․ weight of the evidence is limited to the evidence actually introduced at trial” (People v. Dukes, 284 A.D.2d 236, 236, 726 N.Y.S.2d 554 [1st Dept. 2001], lv denied 97 N.Y.2d 681, 738 N.Y.S.2d 296, 764 N.E.2d 400 [2001] ).

We find no violation of defendant's right to a public trial.  The court providently exercised its discretion in excluding defendant's relative from the courtroom based on the relative's residence in the area in which the testifying undercover officer expected to continue her operations within a short time (see People v. Campbell, 16 N.Y.3d 756, 919 N.Y.S.2d 109, 944 N.E.2d 645 [2011];  People v. Alvarez, 51 A.D.3d 167, 175, 854 N.Y.S.2d 70 [1st Dept. 2008], lv denied 11 N.Y.3d 785, 866 N.Y.S.2d 611, 896 N.E.2d 97 [2008] ).  The court properly factored in the officer's distinctive appearance, which would readily enable defendant's relative to recognize her and reveal her identity to others, and the size of the geographic area.  We have considered and rejected defendant's remaining arguments on this issue.

Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters of trial strategy 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 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 omissions fell below an objective standard of reasonableness, or that, viewed individually or collectively, they deprived defendant of a fair trial or affected the outcome of the case.