PEOPLE v. LOPEZ (2022)

Judgment, Supreme Court, New York County (James M. Burke, J.), rendered June 12, 2019, convicting defendant, after a jury trial, of conspiracy in the fourth degree, and sentencing him, as a second felony drug offender, to a term of two to four years, unanimously affirmed.

Defendant's legal sufficiency claim is unpreserved and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits.  We also find that 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]).  The evidence established that defendant was part of the charged conspiracy, and not merely a member of a different conspiracy or an independent dealer who obtained drugs from the head of the drug organization.  The evidence establishing defendant's participation in the charged conspiracy included recorded telephone conversations and police observations (see People v. Layne, 124 A.D.3d 466, 1 N.Y.S.3d 86 [1st Dept. 2015];  People v. Wilson, 57 A.D.3d 228, 868 N.Y.S.2d 646 [1st Dept. 2008], lv denied 12 N.Y.3d 789, 879 N.Y.S.2d 66, 906 N.E.2d 1100 [2009]).

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, including matters of strategy and attorney-client consultations (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]).