People v. Arnold, 2013-01447, Ind. No. 9556/10.

• Decision Date: 04 May 2016
• Docket Number: 2013-01447, Ind. No. 9556/10.
• Citation: 139 A.D.3d 748,2016 N.Y. Slip Op. 03518,30 N.Y.S.3d 333
• Parties: The PEOPLE, etc., respondent, v. Sheldon ARNOLD, appellant.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 748

30 N.Y.S.3d 333

2016 N.Y. Slip Op. 03518

The PEOPLE, etc., respondent,

v.Sheldon ARNOLD, appellant.

2013-01447, Ind. No. 9556/10.

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

May 4, 2016.

John J. Carney, New York, N.Y., for appellant, and appellant pro se.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Arieh Schulman of counsel), for respondent.

REINALDO E. RIVERA, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and HECTOR D. LaSALLE, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Parker, J.), rendered January 24, 2013, convicting him of burglary in the first degree and robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Ingram, J.), of those branches of the defendant's omnibus motion which were to suppress identification testimony and physical evidence.

ORDERED that the judgment is affirmed.

The Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress physical evidence. The defendant contends that the cell phone seized from his jacket by a detective should have been suppressed because the police entered his apartment without consent and without a warrant, in violation of Payton v. New York , 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639. The evidence at the suppression hearing supports the court's determination that the defendant's fiancée voluntarily consented to the warrantless entry, and thus, there was no Payton violation (see People v. Brown, 234 A.D.2d 211, 651 N.Y.S.2d 981, affd. 91 N.Y.2d 854, 668 N.Y.S.2d 551, 691 N.E.2d 622 ; People v. Lewis, 194 A.D.2d 560, 598 N.Y.S.2d 330, affd. 82 N.Y.2d 839, 606 N.Y.S.2d 146, 626 N.E.2d 931 ; People v. Smith, 174 A.D.2d 701, 572 N.Y.S.2d 875 ; People v. Satornino, 153 A.D.2d 595, 544 N.Y.S.2d 224 ; People v. Schof, 136 A.D.2d 578, 523 N.Y.S.2d 179 ; People v. Davis, 120 A.D.2d 606, 502 N.Y.S.2d 80 ). Although the defendant's fiancée testified that she did not provide consent to the detectives to enter, we do not find that the court's determination to credit the detective's testimony over that of the defendant's fiancée was unsupportable (see People v. Clement, 154 A.D.2d 545, 546 N.Y.S.2d 165 ). Moreover, since the arrest was lawful, the defendant's jacket was properly searched incident to the arrest (see United States v. Robinson, 414 U.S. 218, 227, 94 S.Ct. 467, 38 L.Ed.2d 427 ; People v. Lightfoot, 22 A.D.3d 865, 803 N.Y.S.2d 188 ; People v. Gary, 19 A.D.3d 1118, 796 N.Y.S.2d 820 ; People v. Paul, 6 A.D.3d 1129, 1130, 776 N.Y.S.2d 682 ; People v. Capers, 298 A.D.2d 184, 748 N.Y.S.2d 142 ; People v. Hughes, 138 A.D.2d 523, 526 N.Y.S.2d 130 ).

The defendant's contention 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 ; see People v. Evans, 16 N.Y.3d 571, 575, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). 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 N.Y.2d 824, 825, 440 N.Y.S.2d 170, 422 N.E.2d 815 ; People v. Brown, 45 N.Y.2d 852, 853–854, 410 N.Y.S.2d 287, 382 N.E.2d 1149 ). 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 (see People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).

Contrary to the People's contention, the defendant adequately preserved for appellate review his contention, raised in his pro se supplemental brief, that his conviction was not supported by legally sufficient evidence (see CPL 470.05 [2 ] ). However, 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 identity as one of the perpetrators beyond a reasonable doubt. Moreover, upon the exercise of our factual review power (see CPL 470.15 [5] ), 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, raised in his pro se supplemental brief, that the Supreme Court's sentence penalized him for exercising his right...