The People, etc., respondent, v. Terry Cherry, appellant. (2024)

Argued—March 7, 2024

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Peter M. Forman, J.), rendered December 12, 2019, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a “mixed claim of ineffective assistance” (People v. Maxwell, 89 AD3d 1108, 1109;  see People v. Evans, 16 NY3d 571, 575 n 2).  Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v. Rodriguez, 224 AD3d 783;  People v. Freeman, 93 AD3d 805, 806).

The defendant's challenge to the legal sufficiency of the evidence supporting his conviction of murder in the second degree is unpreserved for appellate review (see CPL 470.05[2] ).  In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of murder in the second degree beyond a reasonable doubt.  Here, intent can be inferred from the defendant's conduct and the surrounding circumstances (see People v. Bracey, 41 N.Y.2d 296, 301;  People v. Johns, 210 AD3d 1108, 1109;  People v. Gibson, 163 AD3d 586, 587).  Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 NY3d 342, 348), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410;  People v. Bleakley, 69 N.Y.2d 490, 495).  Upon reviewing the record here, we are satisfied that the verdict of guilt of murder in the second degree was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).

DUFFY, J.P., MILLER, WAN and LANDICINO, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court