People v. Zappulla

• Decision Date: 13 February 2013
• Parties: The PEOPLE, etc., respondent, v. Guy ZAPPULLA, appellant.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 759

959 N.Y.S.2d 538

2013 N.Y. Slip Op. 00948

The PEOPLE, etc., respondent,

v.Guy ZAPPULLA, appellant.

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

Feb. 13, 2013.

Lynn W.L. Fahey, New York, N.Y. (Erin R. Collins and Paul Skip Laisure of counsel), for appellant, and appellant pro se.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'Hara Gillespie of counsel), for respondent.

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered July 21, 2008, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Under the facts of this case, the Supreme Court did not err in denying, without a hearing, the defendant's motion to suppress evidence of certain statements which he allegedly made to his former girlfriend on the ground that she was acting as an agent of the police. The defendant's contention that the admission of certain evidence violated his constitutional right to confrontation is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Gray, 86 N.Y.2d 10, 21, 629 N.Y.S.2d 173, 652 N.E.2d 919), and we decline to reach it in the exercise of our interest of justice jurisdiction.

The defendant's claim 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). 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, 806, 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,...