People v. Dieye

207 A.D.3d 741

170 N.Y.S.3d 909 (Mem)

The PEOPLE, etc., respondent,

v.Youssouf DIEYE, appellant.

2017-10252

Ind. No. 10548/11

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

Submitted—March 11, 2022

July 27, 2022

Patricia Pazner, New York, NY (Samuel Barr of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley, and Daniel Rosenblum of counsel), for respondent.

BETSY BARROS, J.P., CHERYL E. CHAMBERS, JOSEPH A. ZAYAS, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Alexander Jeong, J.), rendered September 10, 2015, convicting him of rape in the first degree, sexual abuse in the first degree, and assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the verdict convicting him of sexual abuse in the first degree, while acquitting him of criminal sexual act in the first degree, was legally repugnant is without merit. " ‘In determining whether a verdict is legally repugnant, the court views the elements of the offenses as charged to the jury without regard to the proof that was actually presented at trial’ " ( People v. Sims, 199 A.D.3d 841, 842, 156 N.Y.S.3d 436, quoting People v. Johnson, 159 A.D.3d 833, 834, 72 N.Y.S.3d 536 [internal quotation marks omitted]; see People v. Tucker, 55 N.Y.2d 1, 4, 447 N.Y.S.2d 132, 431 N.E.2d 617 ). " ‘If there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case’ " ( People v. Johnson, 197 A.D.3d 725, 727, 153 N.Y.S.3d 156, quoting People v. Johnson, 159 A.D.3d at 834, 72 N.Y.S.3d 536 [internal quotation marks omitted]; accord People v. Muhammad, 17 N.Y.3d 532, 540, 935 N.Y.S.2d 526, 959 N.E.2d 463 ). Here, viewing the elements of the offenses as charged to the jury (see People v. Tucker, 55 N.Y.2d 1, 447 N.Y.S.2d 132, 431 N.E.2d 617 ), the jury's acquittal on the count of criminal sexual act in the first degree did not negate any of the essential elements of the count of sexual abuse in the first degree (see People v. Ford, 76 N.Y.2d 868, 560 N.Y.S.2d 981, 561 N.E.2d 881 ; People v. Wheeler, 67 N.Y.2d 960, 502 N.Y.S.2d 983, 494 N.E.2d 88 ).

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 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). 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, and we decline to review the claim on this direct appeal (see People v....