The People, etc., respondent, v. Jose Bermejo, appellant.

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

The People, etc., respondent, v. Jose Bermejo, appellant.

2009-07199 (Ind.No. 2046/08)

Decided: October 26, 2010

STEVEN W. FISHER, J.P. MARK C. DILLON ANITA R. FLORIO PLUMMER E. LOTT, JJ. Tamara M. Harris, New York, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Ushir Pandit of counsel), for respondent.

Argued-September 28, 2010


Appeal by the defendant from a judgment of the Supreme Court, Queens County (Erlbaum, J.), rendered July 27, 2009, convicting him of forcible touching, assault in the third degree, and endangering the welfare of a child (five counts), after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's claims that his rights pursuant to Brady v. Maryland (373 U.S. 83) were violated are based entirely on matter dehors the record and, thus, cannot be reviewed by this Court on direct appeal (see People v. Helenese, 75 AD3d 653, 655;  People v. Valdes, 66 AD3d 925;  People v. Jackson, 41 AD3d 498, 500).

The Supreme Court correctly ruled at the Molineux hearing (see People v. Molineux, 168 N.Y. 264) that evidence of the defendant's prior sexual conduct toward the complainant was admissible as evidence of the defendant's motive and intent and as background material, and was relevant to enable the fact-finder to understand the defendant's relationship with the complainant (see People v. Hanson, 30 AD3d 537, 538;  People v. Ramsey, 1 AD3d 538;  People v. Howe, 292 A.D.2d 542;  People v. Shorey, 172 A.D.2d 634).   The defendant's contention that the People exceeded the scope of the Supreme Court's Molineux ruling is unpreserved for appellate review and, in any event, is without merit (see CPL 470.05[2];  People v. Dahlbender, 23 AD3d 493, 495;  People v. Taylor, 302 A.D.2d 480;  People v. Samlal, 292 A.D.2d 400;  People v. Rowe, 278 A.D.2d 256;  People v. Davis, 169 A.D.2d 774, 775).

To the extent that the defendant's claim that he was deprived of the effective assistance of counsel involves matter dehors the record, it cannot be reviewed on direct appeal (see People v. Evans, 69 AD3d 649).   To the extent that the claim can be reviewed, the record reveals that defense counsel provided effective assistance (see People v. Henry, 95 N.Y.2d 563;  People v. Benevento, 91 N.Y.2d 708, 712).



Matthew G. Kiernan

Clerk of the Court

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