People v. Thompson

204 A.D.3d 942

164 N.Y.S.3d 878 (Mem)

The PEOPLE, etc., respondent,

v.Joel THOMPSON, appellant.

2021–02945

Ind. No. 28/18

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

Argued—February 17, 2022

April 20, 2022

Stephen N. Preziosi, New York, NY, for appellant.

Miriam E. Rocah, District Attorney, White Plains, NY (Steven A. Bender and Christine DiSalvo of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, ROBERT J. MILLER, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (George E. Fufidio, Jr., J.), rendered March 12, 2021, convicting him of murder in the second degree and attempted murder in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that his trial attorney rendered ineffective assistance of counsel by deferring to the defendant's wishes in declining to seek a jury charge on the lesser-included offense of manslaughter in the first degree (see People v. Colville, 20 N.Y.3d 20, 32, 955 N.Y.S.2d 799, 979 N.E.2d 1125 ). Under the circumstances of this case, where counsel's exchange with the County Court regarding this issue was ambiguous as to her ultimate reasoning for declining to request the charge, the defendant's contention 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. 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 ).

The County Court properly denied the defendant's request to charge criminally negligent homicide as a lesser-included offense of murder in the second degree. There was no reasonable view of the evidence that would support a finding that the defendant acted with criminal negligence (see Penal Law § 15.05[4] ; People v. Randolph, 81 N.Y.2d 868, 869, 597 N.Y.S.2d 630, 613 N.E.2d 536 ; People v. Bruno, 127 A.D.3d 1101, 1102, 6 N.Y.S.3d 656 ).

The defendant's contention that the evidence related to his conviction on one of the counts of attempted murder in the second degree was legally insufficient is unpreserved for appellate review (see CPL 470.05[2] ). 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 on that count beyond a reasonable doubt. 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, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity...