People v. Ventura

172 A.D.3d 1252

98 N.Y.S.3d 858 (Mem)

The PEOPLE, etc., Respondent,

v.Jeffrey VENTURA, Appellant.

2017–08773

Ind. No. 1990/16

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

Argued—January 25, 2019

May 22, 2019

Marianne Karas, Thornwood, NY, for appellant.

Madeline Singas, District Attorney, Mineola, N.Y. (Yael V. Levy and Laurie K. Gibbons of counsel), for respondent.

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Meryl J. Berkowitz, J.), rendered August 4, 2017, convicting him of criminal sale of a controlled substance in the second degree, criminal sale of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the third degree (five counts), criminal use of drug paraphernalia in the second degree (two counts), conspiracy in the second degree, and conspiracy in the fourth degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

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 of all of the crimes of which he was convicted 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, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

Contrary to the defendant's contention, the People established a sufficient chain of custody of the narcotics recovered from the defendant by providing reasonable assurances of the identity and the unchanged condition of the narcotics between their recovery and the trial (see People v. Lancaster, 166 A.D.3d 807, 809, 87 N.Y.S.3d 232 ; People v. Rayford, 80 A.D.3d 780, 780, 916 N.Y.S.2d 603 ; People v. Alomar, 55 A.D.3d 617, 618, 865 N.Y.S.2d 311 ). Any deficiencies in the chain of custody went only to the weight to be given to the evidence, and not to its admissibility (see People v. Hawkins, 11 N.Y.3d 484, 494, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Julian, 41 N.Y.2d 340, 342–343, 392 N.Y.S.2d 610, 360 N.E.2d 1310 ; People v. Lancaster, 166 A.D.3d at 809, 87 N.Y.S.3d 232 ).

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...