PEOPLE v. MORROW (2019)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Helene Gugerty, J.), rendered October 18, 2016, convicting him of attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's current challenges to the grand jury proceeding are unpreserved for appellate review, since he failed to make a timely pretrial motion to dismiss the indictment raising the grounds now urged (see People v. Brown, 81 N.Y.2d 798, 799, 595 N.Y.S.2d 370, 611 N.E.2d 271;  People v. Brims, 145 A.D.3d 1025, 1027, 45 N.Y.S.3d 488;  People v. Forde, 140 A.D.3d 1085, 1087, 34 N.Y.S.3d 477;  People v. Del Carpio, 166 A.D.2d 605, 606, 560 N.Y.S.2d 891).  In any event, the challenges are without merit.

The defendant's contention that the evidence was legally insufficient to establish his guilt is unpreserved for appellate review (see CPL 470.05[2];  People v. Hawkins, 11 N.Y.3d 484, 491–492, 872 N.Y.S.2d 395, 900 N.E.2d 946;  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).  In any event, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.  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 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's challenge to certain remarks the prosecutor made on summation is unpreserved for appellate review (see CPL 470.05[2];  People v. Katehis, 117 A.D.3d 1080, 1081, 986 N.Y.S.2d 570;  People v. Gross, 88 A.D.3d 905, 906, 931 N.Y.S.2d 129).  In any event, the challenged remarks constituted fair comment on the evidence and the reasonable inferences to be drawn therefrom, or fair response to defense counsel's summation, or otherwise did not deprive the defendant of a fair trial (see People v. Bass, 164 A.D.3d 1463, 1464, 83 N.Y.S.3d 691;  People v. Allen, 157 A.D.3d 810, 811, 69 N.Y.S.3d 104).

The defendant contends that judicial bias deprived him of a fair trial.  This contention is unpreserved for appellate review (see CPL 470.05[2];  People v. Prado, 4 N.Y.3d 725, 726, 790 N.Y.S.2d 418, 823 N.E.2d 824;  People v. Bedell, 84 A.D.3d 1733, 1734, 922 N.Y.S.2d 715).  In any event, the record does not support the defendant's contention (see People v. Holmes, 151 A.D.3d 1181, 1184, 59 N.Y.S.3d 143;  People v. Argentieri, 66 A.D.3d 558, 559, 887 N.Y.S.2d 568;  People v. Mao–Sheng Lin, 50 A.D.3d 1251, 1253, 855 N.Y.S.2d 729).

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;  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 the direct appeal (see 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).

We agree with the Supreme Court's denial, without a hearing, of the defendant's motion to set aside the verdict pursuant to CPL 330.30.  The defendant failed to proffer grounds appearing on the face of the record (see CPL 330.30[1];  People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329;  People v. Amato, 238 A.D.2d 432, 433, 656 N.Y.S.2d 360), requiring reversal as a matter of law (see CPL 330.30[1];  People v. Green, 92 A.D.3d 894, 896, 939 N.Y.S.2d 487;  People v. Rohlehr, 87 A.D.3d 603, 604, 927 N.Y.S.2d 919;  People v. Miller, 68 A.D.3d 1135, 1135, 892 N.Y.S.2d 152), or to allege the discovery of evidence which, if received into evidence, would have created a probability of a more favorable verdict (see CPL 330.30[3];  People v. Mullings, 146 A.D.3d 816, 817, 44 N.Y.S.3d 550;  People v. Ali, 123 A.D.3d 1137, 1138, 999 N.Y.S.2d 530).

The defendant's remaining contentions are without merit.

DILLON, J.P., LEVENTHAL, HINDS–RADIX and DUFFY, JJ., concur.