People v Wattkis

People v Wattkis 2016 NY Slip Op 06659 Decided on October 11, 2016 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 October 11, 2016
Mazzarelli, J.P., Sweeny, Acosta, Moskowitz, Gesmer, JJ.
1857 4557/12

[*1]The People of the State of New York, Respondent,

v

Venil Wattkis, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), for respondent.

Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered February 24, 2014, convicting defendant, after a jury trial, of strangulation in the second degree, unlawful imprisonment in the first degree, assault in the third degree, and menacing in the second degree, and sentencing him to an aggregate term of two years, unanimously affirmed.

There was legally sufficient evidence that defendant restrained the victim under circumstances that exposed her to a risk of serious physical injury to support the first-degree unlawful imprisonment conviction. The evidence supports the conclusion that the risk of serious physical injury occasioned by defendant's violent conduct toward the victim was present during the time he restrained her. Defendant's remaining sufficiency-related arguments are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we reject them on the merits, and we also find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348—349 [2007]).

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 (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 the objections or applications that he faults trial counsel for failing to make had any reasonable possibility of success, or of affecting the outcome of the case.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 11, 2016

CLERK