PEOPLE v. OROZCO (2021)

Judgment, Supreme Court, New York County (Neil E. Ross, J.), rendered September 6, 2018, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree and reckless endangerment in the second degree, and sentencing him, as a second felony offender, to an aggregate term of 12 years, unanimously affirmed.

The evidentiary rulings challenged on appeal were provident exercises of the trial court's broad discretion over such matters (see generally People v. Scarola, 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728 [1988]).  In any event, any errors were 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]), which included, among other things, statements by defendant to law enforcement and in recorded phone calls to relatives that the jury could reasonably infer to be repetitive admissions of guilt.

Initially, we note that the fact that defendant was on probation for a federal conviction was part of the context for many items of evidence, such as some of defendant's statements.  His claim that there was excessive reference to his status is unavailing, and the court's instructions minimized any prejudice.

None of the other rulings warrant reversal.  The court providently received defendant's probation officer's opinion testimony that defendant was the person depicted on surveillance video discharging a firearm.  The officer was in a better position than the jurors to identify defendant on the video, and his testimony “served to aid the jury in making an independent assessment regarding whether the man in the [video] was indeed the defendant” (People v. Russell, 79 N.Y.2d 1024, 1025, 584 N.Y.S.2d 428, 594 N.E.2d 922 [1992];  see also People v. Pinkston, 169 A.D.3d 520, 521, 94 N.Y.S.3d 268 [1st Dept. 2019], lv denied 33 N.Y.3d 1107, 106 N.Y.S.3d 684, 130 N.E.3d 1294 [2019]).  Evidence about the probation officer's conversation with defendant about revoking his probation based on the instant crime was relevant to explain defendant's statement, “I was doing good up to then.”  The court's curative actions were sufficient to prevent any prejudice from a question that sought to elicit a detective's opinion about an aspect of the video.  The court providently received evidence about a crime, involving persons other than defendant, that occurred immediately after the instant crime.  This evidence provided necessary background information that explained the police investigation, and the court carefully instructed the jury that defendant was not charged with the later crime.  Defendant's remaining evidentiary claims are unpreserved and we decline to review them in the interest of justice.  As an alternative holding, we reject them on the merits.

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]).  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 perceive no basis for reducing the sentence.