People v. Lembhard

• Decision Date: 04 October 2017
• Citation: 61 N.Y.S.3d 658,154 A.D.3d 686
• Parties: The PEOPLE, etc., respondent, v. Gosford LEMBHARD, appellant.
• Court: New York Supreme Court — Appellate Division

154 A.D.3d 686

61 N.Y.S.3d 658

The PEOPLE, etc., respondent,

v.Gosford LEMBHARD, appellant.

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

Oct. 4, 2017.

Paul N. Weber, Cornwall, NY, for appellant, and appellant pro se.

David M. Hoovler, District Attorney, Middletown, NY (Robert H. Middlemiss of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., JOSEPH J. MALTESE, HECTOR D. LaSALLE, and VALERIE BRATHWAITE NELSON, JJ.

Appeals by the defendant from two judgments of the County Court, Orange County (De Rosa, J.), both rendered June 25, 2014, convicting him of attempted murder in the second degree, attempted assault in the first degree, criminal possession of a weapon in the second degree, reckless endangerment in the first degree (three counts), endangering the welfare of a child, and criminal mischief in the fourth degree, under Indictment No. 2012–00632, and criminal possession of a weapon in the fourth degree and resisting arrest, under Indictment No. 2013–00331, upon jury verdicts, and imposing sentences.

ORDERED that the judgments are affirmed.

Contrary to the defendant's contention, the County Court providently exercised its discretion in declining to give a missing witness instruction to the jury, as the People established that the witness was not available despite the People's diligent efforts to locate him and he was not within their control such that he would be expected to testify in their favor (see People v. Savinon, 100 N.Y.2d 192, 196, 761 N.Y.S.2d 144, 791 N.E.2d 401 ; People v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583 ; People v. Gallardo, 58 A.D.3d 867, 873 N.Y.S.2d 106 ; People v. Williams, 47 A.D.3d 854, 849 N.Y.S.2d 633 ; People v. Jonas, 18 A.D.3d 779, 779, 795 N.Y.S.2d 689 ; People v. Flowers, 275 A.D.2d 329, 330, 711 N.Y.S.2d 835 ; People v. Aguirre, 201 A.D.2d 485, 607 N.Y.S.2d 398 ; People v. Foust, 192 A.D.2d 718, 597 N.Y.S.2d 149 ).

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 (see People v. Ockrey, 142 A.D.3d 511, 511, 35 N.Y.S.3d 921 ). 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. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).

The defendant's contentions raised in his pro se supplemental brief regarding alleged prosecutorial misconduct are largely unpreserved for appellate review (see CPL 470.05[2] ; People v. Dien, 77 N.Y.2d 885, 886, 568 N.Y.S.2d 899, 571 N.E.2d 69 ) and, in any event, without merit. The prosecutor's comments were either fair comment on the evidence and the reasonable inferences to be drawn therefrom or responsive to defense counsel's summation, or otherwise did not deprive the defendant of a fair trial (see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. King, 144 A.D.3d 1176, 1176–1177, 41 N.Y.S.3d 751 ; People v. Nanand, 137 A.D.3d 945, 947–948, 26 N.Y.S.3d 585 ; People v. Willis, 122 A.D.3d 950, 997 N.Y.S.2d 472 ; People v. Hoke, 111 A.D.3d 959, 976 N.Y.S.2d 137 ; People v. McGowan, 111 A.D.3d 850, 975 N.Y.S.2d 147 ). Further, his contention that the jury's verdict under Indictment No. 2012–00632 was repugnant is unpreserved for appellate review (see People v. Alfaro, 66 N.Y.2d 985, 987...