People v. Purdie

175 A.D.3d 1565

109 N.Y.S.3d 355

The PEOPLE, etc., Respondent,

v.Eugene PURDIE, Appellant.

2017–03561

Ind.No. 10380/15

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

Argued—May 28, 2019

September 25, 2019

Paul Skip Laisure, New York, N.Y. (White & Case LLP [Paul B. Carberry and Isaac S. Glassman], of counsel), for appellant, and appellant pro se.

John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, William H. Branigan, and Vinnette K. Campbell of counsel), for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JOHN M. LEVENTHAL, HECTOR D. LASALLE, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Robert A. Schwartz, J.), rendered March 15, 2017, convicting him of criminal possession of a weapon in the third degree and criminal possession of marijuana in the fifth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

On June 23, 2015, an undercover police officer radioed a back-up team after observing the defendant dismount from a bicycle he was riding, remove a black plastic bag hanging from the handlebars, tie the bag to a nearby fence, and proceed to smoke what smelled like a marijuana cigarette with another male. When a detective from the back-up team removed the bag from the fence, he felt what he believed to be the handle of a gun. Upon opening the bag, the detective observed a handgun. After a jury trial, the defendant was convicted of criminal possession of a weapon in the third degree and criminal possession of marijuana in the fifth degree.

The defendant claims that his Sixth Amendment right to confrontation was violated when the Supreme Court granted the People's application to permit the undercover officer to testify anonymously by revealing only his shield number (see People v. Frost, 100 N.Y.2d 129, 760 N.Y.S.2d 753, 790 N.E.2d 1182 ; People v. Stanard, 42 N.Y.2d 74, 396 N.Y.S.2d 825, 365 N.E.2d 857 ). While, contrary to the People's contention, the defendant's claim is preserved for appellate review (see CPL 470.05[2] ; People v. Flores, 153 A.D.3d 182, 62 N.Y.S.3d 68 ; cf. People v. Ricketts, 125 A.D.3d 893, 1 N.Y.S.3d 831 ), it is without merit (see People v. Frost, 100 N.Y.2d at 137, 760 N.Y.S.2d 753, 790 N.E.2d 1182 ; People v. Stanard, 42 N.Y.2d at 85, 396 N.Y.S.2d 825, 365 N.E.2d 857 ; People v. Remgifo, 150 A.D.2d 736, 541 N.Y.S.2d 605 ; People v. Presto, 131 A.D.2d 707, 517 N.Y.S.2d 36 ; see also People v. Waite, 52 A.D.3d 237, 859 N.Y.S.2d 162 ; People v. Smith, 33 A.D.3d 462, 823 N.Y.S.2d 123 ; People v. Thomas, 25 A.D.3d 346, 808 N.Y.S.2d 644 ).

The defendant's contention, raised in his pro se supplemental brief, that the evidence was legally insufficient is unpreserved for appellate review, as defense counsel made only a general motion for a trial order of dismissal based upon the People's alleged failure to make out a prima facie case (see CPL 470.05[2] ; People v Hawkins , 11 N.Y.3d 484, 491–492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v Hill, 72 A.D.3d 702, 705, 898 N.Y.S.2d 553 ; People v Clarke , 66 A.D.3d 693, 885 N.Y.S.2d 629 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 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 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 ). Upon reviewing the record here, 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 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...