| People v Lubrano |
| 2014 NY Slip Op 03554 [117 AD3d 1239] |
| May 15, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vLois Lubrano, Appellant. |
Theodore J. Stein, Woodstock, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Stein, J. Appeal from a judgment of the County Court of Ulster County (Williams,J,), rendered August 14, 2012, upon a verdict convicting defendant of the crimes ofattempted murder in the second degree, attempted assault in the first degree, criminalpossession of a weapon in the fourth degree and criminal mischief in the fourthdegree.
On an evening in June 2011, defendant, while inside the home she shared with thevictim (her mother), aimed a shotgun at the victim, threatened her, placed the shotgun tothe victim's head and ultimately fired one shot, fortunately missing her. After the victimescaped to a neighbor's house, a 911 call was made and the State Police responded to thescene. During the standoff that ensued, State Trooper Thomas Fortuna repeatedly calleddefendant—who remained inside the home—on the telephone. Althoughdefendant hung up many times without speaking to Fortuna, she also made certain oralstatements to him. Ultimately, defendant was apprehended inside her home and wasarrested; the gun was discovered the following day outside the home. Defendant wassubsequently charged by indictment with attempted murder in the second degree,attempted assault in the first degree, criminal mischief in the third degree, criminalpossession of a weapon in the fourth degree and criminal mischief in the fourth degree.After a jury trial, defendant was found guilty of all charges except criminal mischief inthe third degree and was sentenced to various concurrent prison terms, the longest ofwhich was 18 years, plus five years of postrelease supervision. Defendant now appeals,and we affirm.
[*2] We reject defendant'sclaim that the oral statements she made over the telephone to Fortuna during the standoffshould have been suppressed because the police lacked probable cause to interrogate her.Fortuna testified at the suppression hearing that he arrived at the scene with his partner.His partner spoke to the victim, who told him that, in the course of a domestic dispute,her daughter had fired a shotgun round at her and this information was relayed toFortuna. Under the fellow officer rule, Fortuna was entitled to rely on the information hereceived from his partner that was obtained from the victim (see People vKetcham, 93 NY2d 416, 419-420 [1999]; People v Ramirez-Portoreal, 88NY2d 99, 113 [1996]; People vParker, 84 AD3d 1508, 1509 [2011], lv denied 18 NY3d 927 [2012]; People v Bell, 5 AD3d858, 859 [2004]), who, as an " 'identified citizen informant, . . .is presumed to be personally reliable' " (People v Bell, 5 AD3d at 860,quoting People v Parris, 83 NY2d 342, 349 [1994]; see People v Vanness, 106AD3d 1262, 1264 [2013], lv denied 22 NY3d 1044 [2013]). Thus, thisevidence was sufficient to meet the People's burden of establishing that the police hadprobable cause to believe that a crime had been committed when they questioneddefendant.
We are also unpersuaded by defendant's argument that her oral statements shouldhave been suppressed because they were the product of a custodial interrogationconducted in the absence of Miranda warnings.[FN1]
The majority of the challenged statements were made by defendant to Fortuna overthe telephone while she was in her home during the standoff.[FN2]
The purpose of the questions posed to defendant by Fortuna during this time was toquell the volatile situation and to determine the location of the weapon, not to elicitincriminating evidence (see People v Sanchez, 255 AD2d 614, 615 [1998], lvdenied 92 NY2d 1053 [1999]). The questioning, therefore, fell squarely within thepublic safety exception to Miranda, as it was aimed at minimizing risks to thepolice officers and the general public (see New York v Quarles, 467 US 649,655-656 [1984]; People vGause, 50 AD3d 1392, 1394 [2008]). Thus, regardless of whether defendantwas, as she asserts, in custody during the standoff (see generally People v Bower, 27 AD3d 1122, 1123[2006], lv denied 6 NY3d 892 [2006]; People v Scott, 269 AD2d 96, 98[2000], lv denied 95 NY2d 892 [2000]; cf. People v Simpson, 235 AD2d960, 962 [1997], lv denied 89 NY2d 1100 [1997]), suppression of her statementswas not required by the failure to apprise her of her Miranda rights (seePeople v Simpson, 235 AD2d at 961-962).
We find no error in County Court's determination to permit the People to elicitcertain testimony concerning defendant's prior bad acts, including threats made to thevictim. In addition to providing background as to the relationship between defendant andthe victim, such evidence was relevant to issues other than propensity, such asdefendant's intent and motive, as well as the absence of mistake or accident with regardto defendant's attempt to kill or physically injure the victim (see People v Burkett, 101AD3d 1468, 1470 [2012], lv denied 20 NY3d 1096 [2013]; People v Blond, 96 AD3d1149, 1150 [2012], lv denied 19 NY3d 1101 [2012]; People v [*3]Leonard, 83 AD3d 1113, 1116-1117 [2011],affd 19 NY3d 323 [2012]). In allowing some, but not all, of the profferedevidence, County Court properly balanced its probative value and its prejudicial nature(see People v Burkett, 101 AD3d at 1471; People v Blond, 96 AD3d at1150; compare People vBrown, 114 AD3d 1017, 1020 [2014]). Moreover, the court minimized anyprejudice to defendant by giving the jury contemporaneous limiting instructions, whichwere reiterated before the jury deliberated (see People v Kidd, 112 AD3d 994, 996 [2013]; Peoplev Burkett, 101 AD3d at 1470).
Defendant's claim of ineffective assistance of counsel is also unavailing. Whiledefendant now challenges her counsel's failure to pursue extreme emotional disturbanceas an affirmative defense, it is evident from the record that this was a deliberate andcalculated decision made by counsel with defendant's input and that counsel, instead,chose to challenge the People's proof regarding defendant's intent.[FN3]
That strategy would have been contradictory to an extreme emotional disturbancedefense (see People vUnderdue, 89 AD3d 1132, 1134 [2011], lv denied 19 NY3d 969[2012]), which does not negate the element of intent (see People v Ross, 34 AD3d 1124, 1125-1126 [2006],lv denied 8 NY3d 884 [2007]). Moreover, defendant has not established theabsence of any legitimate explanation for pursuing the chosen trial strategy and" 'counsel's efforts should not be second-guessed with the clarity of hindsight todetermine how the defense might have been more effective' " (People v Thomas, 105 AD3d1068, 1071 [2013], lv denied 21 NY3d 1010 [2013], quoting People vBenevento, 91 NY2d 708, 712 [1998]; see People v Underdue, 89 AD3d at1134). Finally, our review of the record in its totality establishes that defendant receivedmeaningful representation (seePeople v Caban, 5 NY3d 143, 152 [2005]; People v Thomas, 105 AD3dat 1071; People v Underdue, 89 AD3d at 1134).
Lahtinen, J.P., Garry and Rose, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:It is not evident from therecord which, if any, of the challenged statements were actually admitted at trial.
Footnote 2:After Fortuna went intodefendant's residence to arrest her, defendant made a statement with respect to thelocation of the gun. However, that statement was not made as a result of anyinterrogation; rather, defendant made the statement after Fortuna's supervisor asked theother troopers in the room whether the gun had been located.
Footnote 3:In fact, defense counselstated on the record that he had no intention of raising a psychiatric defense and thatdefendant had agreed that such a defense would not be pursued.