People v. Vazquez

204 A.D.3d 943

164 N.Y.S.3d 850 (Mem)

The PEOPLE, etc., respondent,

v.Juan P. VAZQUEZ, appellant.

2018–06244

Ind. No. 146/17

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

Argued—February 22, 2022

April 20, 2022

James W. Neilson, Whitestone, NY, for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Amanda Iannuzzi of counsel), for respondent.

ANGELA G. IANNACCI, J.P., SHERI S. ROMAN, LARA J. GENOVESI, WILLIAM G. FORD, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Richard Buchter, J.), rendered April 24, 2018, convicting him of rape in the first degree and sexual abuse in the first degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

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 fact-finder's opportunity to view the witnesses, hear the testimony, and observe their demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; 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 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 ). Any discrepancies between the eyewitness’ prior out-of-court statements, grand jury testimony, and trial testimony "were not of such magnitude as to render [her] testimony incredible or unreliable" ( People v. Duwe, 164 A.D.3d 1256, 1256, 83 N.Y.S.3d 582 ; see People v. Henderson, 142 A.D.3d 1104, 1105, 37 N.Y.S.3d 620 ; People v. Fernandez, 115 A.D.3d 977, 978, 982 N.Y.S.2d 174 ).

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. 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 defendant's contention that his waiver of the right to a jury trial was invalid is unpreserved for appellate review (see CPL 470.05[2] ; People v. Johnson, 51 N.Y.2d 986, 987, 435 N.Y.S.2d 713, 416 N.E.2d 1048 ; People v. Jones, 181 A.D.3d 714, 715, 117 N.Y.S.3d 600 ; People v. Maldonado, 167 A.D.3d 1047, 1048, 88 N.Y.S.3d 353 ). In any event, the record does not support the defendant's contention that his waiver of the right to a jury trial was not knowing, voluntary, and intelligent (see People v. Williams, 149 A.D.3d 986, 50 N.Y.S.3d 305 ; People v. Fani, 59 A.D.3d 460, 460, 872 N.Y.S.2d 535 ; People v. Butler, 17 A.D.3d...