PEOPLE v. THOMPSON

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The PEOPLE, etc., respondent, v. Derrick THOMPSON, appellant.

Decided: October 10, 2012

PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ. Lynn W.L. Fahey, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Ushir Pandit of counsel), for respondent.

ORDERED that the judgment is affirmed.

The defendant's challenge to the Supreme Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) is without merit. The court struck an appropriate balance between the probative value of the defendant's prior crimes on the issue of credibility and the possible prejudice to the defendant (see People v. Springer, 13 A.D.3d 657, 658, 787 N.Y.S.2d 386; People v. Mack, 6 A.D.3d 551, 775 N.Y.S.2d 345). The court declined to permit cross-examination as to certain convictions that were remote or had little bearing on the defendant's credibility, and prohibited the prosecution from eliciting the underlying facts of the prior convictions about which it was permitted to impeach the defendant (see People v. Hayes, 97 N.Y.2d 203, 208, 738 N.Y.S.2d 663, 764 N.E.2d 963; People v. Springer, 13 A.D.3d at 658, 787 N.Y.S.2d 386; People v. Mack, 6 A.D.3d at 551, 775 N.Y.S.2d 345). The mere fact that some of the prior convictions were similar in nature to the instant offenses did not warrant their preclusion (see People v. Hayes, 97 N.Y.2d at 208, 738 N.Y.S.2d 663, 764 N.E.2d 963; People v. Springer, 13 A.D.3d at 658, 787 N.Y.S.2d 386; People v. Mack, 6 A.D.3d at 551, 775 N.Y.S.2d 345).

The defendant's contention regarding the prosecutor's summation comments is unpreserved for appellate review (see CPL 470.05[2]; People v. McCants, 67 A.D.3d 821, 823, 888 N.Y.S.2d 200). In any event, although the defendant correctly contends that some of the prosecutor's comments impermissibly shifted the burden of proof to the defendant (see People v. Grant, 94 A.D.3d 1139, 1141, 942 N.Y.S.2d 223; People v. McCants, 67 A.D.3d at 823, 888 N.Y.S.2d 200; People v. Walters, 251 A.D.2d 433, 434, 674 N.Y.S.2d 114), this error was harmless, as the evidence of the defendant's guilt was overwhelming and there was no reasonable possibility that these comments might have contributed to the defendant's conviction (see People v. Crimmins, 36 N.Y.2d 230, 237–238, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Grant, 94 A.D.3d at 1141, 942 N.Y.S.2d 223; People v. McCants, 67 A.D.3d at 823, 888 N.Y.S.2d 200).

The defendant's contention, raised in his pro se supplemental brief, that the evidence was legally insufficient to support the verdict, is unpreserved for appellate review (see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 491–492, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 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 factfinder'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, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; People v. Bleakley, 69 N.Y.2d 490, 495, 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 further contention, raised in his pro se supplemental brief, that his Sixth Amendment right to confront witnesses was violated, is unpreserved for appellate review and, in any event, without merit (see People v. Brown, 13 N.Y.3d 332, 890 N.Y.S.2d 415, 918 N.E.2d 927; People v. Rawlins, 10 N.Y.3d 136, 158–160, 855 N.Y.S.2d 20, 884 N.E.2d 1019, cert. denied sub nom. Meekins v. New York, ––– U.S. ––––, 129 S.Ct. 2856, 174 L.Ed.2d 601; cf. Williams v. Illinois, ––– U.S. ––––, 132 S.Ct. 2221, 183 L.Ed.2d 89; see generally Crawford v. Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354, 158 L.Ed.2d 177).

The defendant's contention, raised in his pro se supplemental brief, that the Supreme Court erred in charging the jury is similarly unpreserved for appellate review (see CPL 470.05[2] ). In any event, the court properly charged the jury.

The defendant's claim, raised in his pro se supplemental brief, 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, quoting People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457, cert. denied ––– U.S. ––––, 132 S.Ct. 325, 181 L.Ed.2d 201). Here, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (cf. People v. Crump, 53 N.Y.2d 824, 440 N.Y.S.2d 170, 422 N.E.2d 815; People v. Brown, 45 N.Y.2d 852, 410 N.Y.S.2d 287, 382 N.E.2d 1149). Since the defendant's claim of ineffective assistance 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, 940 N.Y.S.2d 314; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386; People v. Rohlehr, 87 A.D.3d 603, 604, 927 N.Y.S.2d 919).

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