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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Tyrone WORTHAM, Defendant–Appellant.


Decided: April 05, 2018

Acosta, P.J., Tom, Oing, Moulton, JJ. Seymour W. James, Jr., The Legal Aid Society, New York (William B. Carney of counsel), for appellant. Tyrone Wortham, appellant pro se. Cyrus R. Vance, Jr., District Attorney, New York (David M. Cohn of counsel), for respondent.

Judgment, Supreme Court, New York County (Charles H. Solomon, J. at suppression hearing;  Richard D. Carruthers, J. at jury trial and sentencing), rendered April 18, 2013, as amended April 22, 2013, convicting defendant of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree (two counts), criminal possession of a controlled substance in the third and seventh degrees, criminally using drug paraphernalia in the second degree (two counts), and endangering the welfare of a child (two counts), and sentencing him, as a second violent felony offender, to an aggregate term of 9 years, unanimously affirmed.

The hearing court properly denied defendant's motion to suppress a statement he made in response to an officer's pedigree question.  Although defendant acknowledged that he resided in the apartment where contraband was found, he was responding to a routine administrative question that was not a “disguised attempt at investigatory interrogation” (People v. Rodney, 85 N.Y.2d 289, 294, 624 N.Y.S.2d 95, 648 N.E.2d 471 [1995] ) and was not designed to elicit an incriminating response (see People v. Flagg, 149 A.D.3d 513, 51 N.Y.S.3d 504 [1st Dept. 2017], lv denied 29 N.Y.3d 1079, 64 N.Y.S.3d 168, 86 N.E.3d 255 [2017] ).

The trial court properly denied defendant's severance motion.  The defenses of defendant and his codefendant were not in “irreconcilable conflict” (People v. Mahboubian, 74 N.Y.2d 174, 184, 544 N.Y.S.2d 769, 543 N.E.2d 34 [1989] ).  Throughout the trial, the defenses were generally consistent.  To the extent that one of the several theories raised by codefendant's counsel on summation tended to shift blame to defendant, there was no significant danger that “the conflict alone would lead the jury to infer defendant's guilt” (id.).

Defendant was not entitled to a hearing pursuant to Frye v. United States, 293 F. 1013 [D.C. Cir.1923] to determine the reliability of forensic statistical tool DNA evidence (see e.g. People v. Gonzalez, 155 A.D.3d 507, 65 N.Y.S.3d 142 [1st Dept. 2017];  People v. Lopez, 50 Misc.3d 632, 23 N.Y.S.3d 820 [Sup. Ct., Bronx County [2015];  People v. Debraux, 50 Misc.3d 247, 259, 21 N.Y.S.3d 535 [Sup. Ct., N.Y. County 2015] ).

Defendant's pro se ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];  People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ).  Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal.  In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).

We have considered and rejected defendant's remaining pro se claims.