

People v McDowell (2015 NY Slip Op 01722)





People v McDowell


2015 NY Slip Op 01722


Decided on February 26, 2015


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 26, 2015

Gonzalez, P.J., Mazzarelli, Acosta, Moskowitz, DeGrasse, JJ.


14362 3480/09

[*1] The People of the State of New York, Respondent,
vCharles McDowell, Defendant-Appellant.


Richard M. Greenberg, Office of the Appellate Defender, New York (Margaret E. Knight of counsel), and Jones Day, New York (Lee M. Pollack of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Noah J. Chamoy of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered March 12, 2012, convicting defendant, after a jury trial, of murder in the second degree and robbery in the first degree, and sentencing him, as a second felony offender, to an aggregate term of 40 years to life, unanimously affirmed.
The court properly exercised its discretion in permitting the prosecutor to elicit limited, innocuous background information about the murder victim. This evidence was not unduly prejudicial, and any error in this regard was harmless (see People v Stevens, 76 NY2d 833, 835-836 [1990]). There was overwhelming evidence of defendant's guilt of both felony murder and a separate, subsequent robbery.
Defendant did not preserve his claim that the prosecutor exceeded the scope of the court's ruling on background evidence,
his arguments on other evidentiary issues, or his challenges to the prosecutor's opening statement and summation (see People v Romero, 7 NY3d 911 [2006]), and he expressly waived any objection to the court's supplemental jury instructions. We decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal. Any error was harmless in light of the overwhelming evidence (see People v Crimmins, 36 NY2d 230 [1975]).
Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record, including matters of strategy (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]). Defendant has not shown that any of counsel's alleged [*2]deficiencies fell below an objective standard of reasonableness, or that, viewed individually or collectively, they deprived defendant of a fair trial or affected the outcome of the case.
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 26, 2015
CLERK


