People v BartonPeople v Barton
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered October 16, 2009, convicting him of attempted aggravated murder (three counts), assault in the second degree (three counts), criminal possession of a weapon in the third degree, and criminal possession of stolen property in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant‘s contention that the evidence was legally insufficient to support his convictions of three counts of attempted aggravated murder and three counts of assault in the second degree is unpreserved for appellate review (see
The defendant‘s challenge to the Supreme Court‘s Sandoval ruling (see People v Sandoval, 34 NY2d 371 [1974]) is only partially preserved for appellate review (see
The defendant‘s contention that he was deprived of a fair trial by various remarks made by the prosecutor during summation is unpreserved for appellate review, as the defendant either made no objection, or made only a general objection, or made an objection for the first time in his postsummations motion for a mistrial, or made objections that were sustained without any further request for curative instructions and were not the basis of his motion for a mistrial (see
Since the defendant‘s guilt was proven beyond a reasonable doubt at trial, there can be no appellate review of the defendant‘s claim, raised in his pro se supplemental brief, that the evidence presented to the grand jury was legally insufficient (see
The defendant‘s contention, raised in his pro se supplemental brief, that all of the identification testimony of the prosecution‘s witnesses should have been precluded due to the People‘s failure to serve notice pursuant to
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 AD3d 1108, 1109 [2011], quoting People v Evans, 16 NY3d 571, 575 n 2 [2011], cert denied 565 US —, 132 S Ct 325 [2011]). In this case, 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 NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]). Since the defendant‘s claim of ineffective assistance cannot be resolved without reference to matter outside the record, a
Contrary to the contention raised in the defendant‘s pro se supplemental brief, the sentence imposed was not illegal.
The defendant‘s remaining contentions raised in his pro se supplemental brief are unpreserved for appellate review and, in any event, without merit. Dillon, J.P., Dickerson, Hall and Austin, JJ., concur.