PEOPLE v. SINGH (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gia L. Morris, J.), rendered March 9, 2020, convicting him of rape in the first degree, rape in the third degree, and unlawful imprisonment in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that he was deprived of a fair trial because the Supreme Court allowed a certain court-certified interpreter to translate the testimony of the complainant in court, even though the People had used the same court interpreter to translate for the complainant during pretrial preparations.  However, the defendant waived this contention when his counsel expressly agreed to allow the court interpreter to continue translating for the complainant after being told that the interpreter had assisted the People with pretrial preparations (see generally People v. Gajadhar, 9 N.Y.3d 438, 448, 850 N.Y.S.2d 377, 880 N.E.2d 863).  The defendant's remaining contentions regarding the court interpreter are unpreserved for appellate review (see CPL 470.05[2];  People v. Melendez, 8 N.Y.3d 886, 887, 832 N.Y.S.2d 893, 865 N.E.2d 1;  People v. Gutierrez, 100 A.D.3d 656, 656, 952 N.Y.S.2d 897), and we decline to review those contentions in the exercise of our interest of justice jurisdiction.

Moreover, the defendant failed to preserve for appellate review his contention that his conviction of unlawful imprisonment in the second degree should merge into the rape counts because he failed to challenge the verdict on this basis before the Supreme Court (see People v. Sims, 199 A.D.3d 841, 842, 156 N.Y.S.3d 436).  In any event, the defendant's contention is without merit.  The restraint involved in the unlawful imprisonment charge continued past the completion of the acts of the underlying rape charges (see People v. Richards, 144 A.D.3d 844, 846, 40 N.Y.S.3d 544;  People v. Santiago, 115 A.D.3d 885, 887, 982 N.Y.S.2d 368;  People v. Crosdale, 103 A.D.3d 749, 751, 962 N.Y.S.2d 160;  People v. McLeod, 50 A.D.3d 826, 826, 856 N.Y.S.2d 164).

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 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 [alteration and internal quotation marks omitted];  see People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457).  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. Dunaway, 207 A.D.3d 742, 744, 172 N.Y.S.3d 108;  People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314;  People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

CONNOLLY, J.P., BRATHWAITE NELSON, LANDICINO and GOLIA, JJ., concur.