PEOPLE v. HOGAN (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Timothy P. Mazzei, J.), rendered April 6, 2023, convicting him of burglary in the first degree (three counts) and burglary in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The charges against the defendant arose from an armed home invasion that occurred during the early morning hours of May 7, 2021.  At the defendant's trial, a codefendant testified that the defendant essentially acted as the getaway driver for a burglary during which six men, armed with two firearms, forcefully entered the home of the complaining witnesses and, inter alia, pistol-whipped one of them.

The defendant's contention that the evidence was legally insufficient to establish his identity as a participant in the incident is unpreserved for appellate review (see CPL 470.05[2] ).  In any event, viewing the evidence in the light most favorable to the prosecution (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. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  People v. Bleakley, 69 N.Y.2d 490, 494, 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 contention that he was deprived of the effective assistance of counsel is based, in part, on matters appearing on the record and, in part, on matters outside the record (see People v. Byers, 247 A.D.3d 1055, 1056, 254 N.Y.S.3d 520;  People v. Renaud, 137 A.D.3d 818, 820–821, 27 N.Y.S.3d 578) and, thus, constitutes a mixed claim of ineffective assistance (see People v. Byers, 247 A.D.3d at 1056, 254 N.Y.S.3d 520;  People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386).  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. Byers, 247 A.D.3d at 1056, 254 N.Y.S.3d 520;  People v. Rodriguez, 224 A.D.3d 783, 785, 205 N.Y.S.3d 451).

Contrary to the defendant's contention, the County Court properly denied that branch of the defendant's motion which was pursuant to CPL 330.30 to set aside the verdict on the ground of legal insufficiency because the defendant failed to preserve for appellate review the contention that he advanced on that motion (see id. § 330.30[1];  People v. Williams, 208 A.D.3d 899, 903, 173 N.Y.S.3d 645;  People v. Taylor, 187 A.D.3d 58, 61, 129 N.Y.S.3d 469).  In addition, the court properly denied that branch of the defendant's motion which was pursuant to CPL 330.30 to set aside the verdict on the ground of ineffective assistance of counsel, because that contention was based in part on matters outside the record (see People v. McCoy, 188 A.D.3d 1262, 1263, 132 N.Y.S.3d 839).

The defendant failed to preserve for appellate review his contention that the sentence imposed improperly penalized him for exercising his right to trial (see People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017;  People v. Cassidy, 249 A.D.3d 750, 752, 255 N.Y.S.3d 737).  In any event, the record fails to establish that the County Court penalized the defendant for exercising his right to proceed to trial (see People v. Cassidy, 249 A.D.3d at 752, 255 N.Y.S.3d 737;  People v. Lewis, 247 A.D.3d 1061, 1062, 254 N.Y.S.3d 191).  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 remaining contention is not properly before this Court, as it is based on matters dehors the record.

CONNOLLY, J.P., WOOTEN, VENTURA and OTTLEY, JJ., concur.