People v. Parker

• Decision Date: 03 October 2012
• Citation: 2012 N.Y. Slip Op. 06624,99 A.D.3d 732,951 N.Y.S.2d 239
• Parties: The PEOPLE, etc., respondent, v. Kermitt PARKER, appellant.
• Court: New York Supreme Court — Appellate Division

99 A.D.3d 732

951 N.Y.S.2d 239

2012 N.Y. Slip Op. 06624

The PEOPLE, etc., respondent,

v.Kermitt PARKER, appellant.

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

Oct. 3, 2012.

Del Atwell, East Hampton, N.Y., for appellant, and appellant pro se.

Francis D. Phillips II, District Attorney, Goshen, N.Y. (Elizabeth L. Guinup and Andrew R. Kass of counsel), for respondent.

PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and JEFFREY A. COHEN, JJ.

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered March 11, 2010, convicting him of burglary in the first degree, assault in the third degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's challenge to the legal sufficiency of the evidence supporting his conviction of burglary in the first degree is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Finger, 95 N.Y.2d 894, 895, 716 N.Y.S.2d 34, 739 N.E.2d 290;People v. Gray, 86 N.Y.2d 10, 19–21, 629 N.Y.S.2d 173, 652 N.E.2d 919). 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 of burglary in the first degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 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 jury'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. denied542 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 with respect to the conviction of burglary in the first degree 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 he was deprived of the constitutional right to 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). 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, 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,lv. denied19 N.Y.3d 960, 950 N.Y.S.2d 112, 973 N.E.2d 210;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).

In his pro se supplemental brief, the defendant contends, in effect, that the County Court improperly failed to conduct a hearing to determine the proper amount of restitution. This contention is unpreserved for appellate review ( see People v. Francis, 82 A.D.3d 1263, 919 N.Y.S.2d 394;People v. Nelson, 77 A.D.3d 973, 909 N.Y.S.2d 642;People v. Rojas, 74 A.D.3d 1369, 903...