PEOPLE v. BROWN (2023)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Felice J. Muraca, J.), rendered June 7, 2021, convicting him of aggravated criminal contempt and aggravated family offense, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant has waived his contentions that the indictment should be dismissed on the ground that he was not permitted to testify before the grand jury and that his right to a speedy trial under CPL 30.30 was violated (see People v. Brown, 193 A.D.3d 875, 876, 142 N.Y.S.3d 390;  People v. Mandes, 168 A.D.3d 764, 765, 91 N.Y.S.3d 194).  The defendant failed to file, within five days of his arraignment, a written motion to dismiss the indictment on the ground that he was not permitted to testify before the grand jury (see CPL 190.50[5][c], 210.20[1][c], 210.45[1];  People v. Brown, 193 A.D.3d at 876, 142 N.Y.S.3d 390).  In any event, the issue is without merit (see People v. Hogan, 26 N.Y.3d 779, 786, 28 N.Y.S.3d 1, 48 N.E.3d 58).  The defendant also failed to file, “prior to the commencement of trial,” a written motion to dismiss the indictment on the ground that his right to a speedy trial had been violated (CPL 210.20[1][g], [2];  see CPL 210.45[1];  People v. Lawrence, 64 N.Y.2d 200, 203, 485 N.Y.S.2d 233, 474 N.E.2d 593;  People v. Mandes, 168 A.D.3d at 765, 91 N.Y.S.3d 194).

The defendant's contention that counts 9 and 10 of the indictment were multiplicitous is academic, as the jury found the defendant not guilty of count 9 (see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 713, 431 N.Y.S.2d 400, 409 N.E.2d 876;  People v. Williams, 214 A.D.3d 828, 829, 186 N.Y.S.3d 62;  People v. Smith, 113 A.D.2d 905, 907–08, 493 N.Y.S.2d 623).

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 this 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).

The defendant's remaining contention is improperly raised for the first time in his reply brief (see People v. Merriman, 212 A.D.3d 845, 845, 180 N.Y.S.3d 544).

DILLON, J.P., IANNACCI, MILLER and TAYLOR, JJ., concur.