PEOPLE v. PALMER (2019)

DECISION & ORDER

ORDERED that the judgment is affirmed.

The defendant contends that his acquittal on some counts of the indictment indicates that the jury found the fingerprint evidence unreliable, so that the verdict of guilty on the remaining counts of the indictment was against the weight of the evidence.  However, the defendant's acquittal on some counts of the indictment does not undermine the weight of the evidence supporting the jury's verdict convicting him of the remaining counts (see People v. Kypri, 149 A.D.3d 980, 980, 50 N.Y.S.3d 308;  People v. Mitchell, 148 A.D.3d 730, 732, 48 N.Y.S.3d 488;  People v. Choi, 137 A.D.3d 808, 809, 26 N.Y.S.3d 333).  An intermediate appellate court conducting a weight of the evidence review of a mixed jury verdict may take into account “ ‘the possibility that the jury has not necessarily acted irrationally, but instead has exercised mercy’ ” (People v. Rayam, 94 N.Y.2d 557, 561, 708 N.Y.S.2d 37, 729 N.E.2d 694, quoting People v. Tucker, 55 N.Y.2d 1, 7, 447 N.Y.S.2d 132, 431 N.E.2d 617;  see People v. Choi, 137 A.D.3d at 809, 26 N.Y.S.3d 333), and is not required “to assume the basis for any implied inconsistencies” in such mixed verdicts (People v. Rayam, 94 N.Y.2d at 563, 708 N.Y.S.2d 37, 729 N.E.2d 694;  see People v. Choi, 137 A.D.3d at 809, 26 N.Y.S.3d 333).  Upon 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 are satisfied that the verdict of guilt on the remaining counts of the indictment 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 contention that the sentence imposed was improperly based on the crimes of which he was acquitted is unpreserved for appellate review (see CPL 470.05[2];  People v. Harrison, 82 N.Y.2d 693, 694, 601 N.Y.S.2d 573, 619 N.E.2d 651;  People v. Metellus, 46 A.D.3d 578, 579, 846 N.Y.S.2d 623;  People v. Brown, 38 A.D.3d 676, 677, 831 N.Y.S.2d 510) and, in any event, without merit (see People v. Harris, 101 A.D.3d 900, 900, 954 N.Y.S.2d 920;  People v. Brown, 38 A.D.3d at 677, 831 N.Y.S.2d 510).

The defendant's contention that his sentence should be reduced since he was penalized for withdrawing his plea of guilty is also unpreserved for appellate review since he did not raise this issue at his sentencing hearing (see People v. Dunaway, 134 A.D.3d 952, 954, 22 N.Y.S.3d 476;  People v. Evans, 16 A.D.3d 595, 596, 792 N.Y.S.2d 124).  In any event, this contention is without merit.  The fact that a sentence imposed after trial is greater than the sentence offered during plea negotiations is not, standing alone, an indication that the defendant was punished for asserting his right to proceed to trial (see People v. Melendez, 71 A.D.3d 1166, 1167, 898 N.Y.S.2d 224;  People v. Davis, 27 A.D.3d 761, 762, 815 N.Y.S.2d 612).  A review of the record reveals no retaliation or vindictiveness against the defendant for electing to proceed to trial (see People v. Dunaway, 134 A.D.3d at 955, 22 N.Y.S.3d 476).  Moreover, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

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).  As 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 (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).

The defendant's remaining contention is without merit.

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