PEOPLE v. WILLIAMS (2020)

Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J.), rendered October 11, 2017, convicting defendant, after a jury trial, of burglary in the second degree, robbery in the third degree, and seven counts of criminal contempt in the first degree, and sentencing him, as a second violent felony offender, to an aggregate term of 14 to 16 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of directing that all sentences run concurrently with each other, resulting in a new aggregate term of 12 years, and otherwise affirmed.

We reject defendant's claim that his burglary and robbery convictions and certain of his contempt convictions were 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 for disturbing the jury's credibility determinations, and the jury's mixed verdict does not warrant a different conclusion.  Although in performing weight of the evidence review, we may consider an alleged factual inconsistency in a verdict (see People v. Rayam, 94 N.Y.2d 557, 563 n., 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000] ), we nevertheless find it “imprudent to speculate concerning the factual determinations that underlay the verdict” (People v. Horne, 97 N.Y.2d 404, 413, 740 N.Y.S.2d 675, 767 N.E.2d 132 [2002];  see also People v. Hemmings, 2 N.Y.3d 1, 5 n., 776 N.Y.S.2d 201, 808 N.E.2d 336 [2004] ).  The jury could reasonably have inferred that defendant entered the victim's building with the intent to commit a crime therein based on his history of admitted, knowing violations of an order of protection.  It could also reasonably have found that defendant made physical contact with the victim with the intent to harass, annoy, threaten, or alarm her and forcibly stole her glasses.

The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v. Hayes, 97 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002];  People v. Walker, 83 N.Y.2d 455, 458–459, 611 N.Y.S.2d 118, 633 N.E.2d 472 [1994] ).  The court only permitted a limited inquiry into defendant's extensive criminal record and use of aliases.  Defendant's deceitful conduct was “highly probative of [his] credibility notwithstanding its remoteness in time” (People v. Best, 154 A.D.3d 598, 599, 64 N.Y.S.3d 5 [1st Dept. 2017], lv denied 30 N.Y.3d 1103, 77 N.Y.S.3d 2, 101 N.E.3d 388 [2018] ), especially given his intervening incarceration (see People v. Williams, 186 A.D.2d 469, 469, 589 N.Y.S.2d 155 [1st Dept. 1992], lv denied 81 N.Y.2d 849, 595 N.Y.S.2d 749, 611 N.E.2d 788 [1993] ).

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 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] ).

We find the sentence excessive to the extent indicated.