People v Brito

People v Brito 2007 NY Slip Op 07365 [44 AD3d 345] October 4, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

The People of the State of New York, Respondent,
v
Victor Brito, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Claudia S. Trupp of counsel), for appellant.

Victor Brito, appellant pro se.

Robert T. Johnson, District Attorney, Bronx (Alexis Pimentel of counsel), for respondent.

Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered June 20, 2002, convicting defendant, after a jury trial, of two counts of murder in the second degree, and sentencing him to concurrent terms of 25 years to life, unanimously affirmed.

The jury's verdict was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning issues of credibility, including the weight to be given the backgrounds of the People's multiple witnesses and any inconsistencies in their testimony (see People v Bleakley, 69 NY2d 490, 495 [1987]).

The court's instruction on prior inconsistent statements was sufficient to convey to the jury that it could, if so inclined, reject the testimony of a witness on the basis of the witness's failure to reveal facts on a previous occasion. Accordingly, it was not error for the court to refuse defendant's request for a specific instruction on the concept of omissions.

Defendant's claims of prosecutorial misconduct are unpreserved and we decline to review them in the interest of justice. Were we to review them, we would find no basis for reversal (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]). Similarly, defense counsel's failure to make specific objections to the alleged misconduct did not cause defendant any prejudice and did not deprive him of effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]).

Defendant's pro se ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters [*2]outside the record (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). Defendant's remaining pro se claims are without merit. Concur—Mazzarelli, J.P., Saxe, Sullivan, Catterson and Kavanagh, JJ.