PEOPLE v. KOCAJ (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Stephen L. Greller, J.), rendered June 3, 2013, convicting him of arson in the second degree, assault in the second degree, assault in the third degree, reckless endangerment in the second degree (five counts), and endangering the welfare of a child (six counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the County Court erred in rejecting his peremptory challenge to a female juror as pretextual is without merit.  Upon consideration of the entire record of the jury selection proceedings, and applying the relevant factors set forth in People v. Richie (217 A.D.2d 84, 89, 635 N.Y.S.2d 263), we conclude that the court properly denied the defendant's peremptory challenge to this juror (see e.g. People v. Carrington, 105 A.D.3d 970, 964 N.Y.S.2d 546;  People v. Patterson, 12 A.D.3d 694, 785 N.Y.S.2d 513).

The defendant's right to be present during jury selection was not violated by the County Court's instruction that he not “turn around and try to make eye contact with the jurors” while they exited the courtroom.  The defendant was present during voir dire, he had an opportunity to consult with counsel, and the challenges to the jury were given effect in his presence (see People v. Velasco, 77 N.Y.2d 469, 568 N.Y.S.2d 721, 570 N.E.2d 1070;  People v. Montgomery, 213 A.D.2d 563, 623 N.Y.S.2d 921, affd 88 N.Y.2d 926, 647 N.Y.S.2d 162, 670 N.E.2d 446).

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, 925 N.Y.S.2d 366, 949 N.E.2d 457).  In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (see People v. Thompson, 150 A.D.3d 1156, 1157, 52 N.Y.S.3d 675).  Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside of the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Leverich, 139 A.D.3d 756, 757, 29 N.Y.S.3d 187).

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

MASTRO, J.P., BALKIN, CONNOLLY and CHRISTOPHER, JJ., concur.