| People v Salce |
| 2015 NY Slip Op 00250 [124 AD3d 923] |
| January 8, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vLydia Ann Salce, Appellant. |
Paul J. Connolly, Delmar, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Michele Schettino of counsel), forrespondent.
Lahtinen, J. Appeals (1) from a judgment of the County Court of Saratoga County(Scarano, J.), rendered August 31, 2012, upon a verdict convicting defendant of thecrimes of attempted murder in the second degree and assault in the first degree (twocounts), and (2) from an order of said court, entered October 2, 2013, which denieddefendant's motion to settle the record on appeal.
In the early morning hours of August 11, 2011, defendant and her husband, MichaelMcKee, engaged in a violent physical altercation during which, among other things,defendant was punched in the face and McKee was repeatedly stabbed. Markedlydifferent versions of events were given by defendant and McKee. Briefly, defendantclaimed that an intoxicated McKee instigated the altercation by beating her and holding aknife to her throat, and that she acted in self-defense fearing he intended to kill her.McKee, on the other hand, related that, as he arrived home late after drinking with hisbiker friends, defendant stabbed him in the back while yelling, "you're done"; he struckher in the face with his fist in an attempt to defend himself but she kept stabbing himabout his body as he collapsed on the floor.
Defendant was indicted for attempted murder in the second degree, two counts ofassault in the first degree and two counts of assault in the second degree. A jury foundher guilty of attempted murder in the second degree and the two counts of assault in thefirst degree. She [*2]was sentenced to concurrent prisonterms of 16 years on all three counts plus five years of postrelease supervision. CountyCourt denied defendant's motion to settle the record on appeal to include McKee'semployment records. Defendant appeals from the judgment of conviction and CountyCourt's denial of her motion to settle the record.
Defendant argues that the verdict was not supported by legally sufficient evidenceand was against the weight of the evidence. In legal sufficiency review, we "determinewhether there is any valid line of reasoning and permissible inferences which could leada rational person to the conclusion reached by the jury on the basis of the evidence at trialand as a matter of law satisfy the proof and burden requirements for every element of thecrime charged" (People v Bleakley, 69 NY2d 490, 495 [1987] [citation omitted];see People v Danielson, 9NY3d 342, 349 [2007]). The People elicited testimony from friends and coworkersof defendant reflecting that she had complained repeatedly about the deterioration of hershort marriage to McKee stemming from the amount of time that he was spending withmembers of a motorcycle club known as "Prisoners of Fate," where McKee hoped tobecome a member. She had locked him out of the house and called police a week earlier.On the morning of August 10, 2011, when she arrived at work, she told a coworker thatshe had made an appointment with a psychiatrist and, if she did not speak to someonesoon, she was "going to kill" McKee. That evening, a biker friend of McKee gave him aride home and observed defendant run out of the house screaming obscenity-lacedcomments at them and acting in a manner described as violent and aggressive as she toldMcKee to leave. McKee testified that he briefly left with his friend, but returned andentered the house during the early morning hours of August 11, 2011. After a verbalaltercation, he reportedly turned to leave the room when defendant stabbed him in theback screaming, "you're done." He punched her in an effort to defend himself, but shecontinued to stab him using a KA-BAR combat knife with a four- to five-inch blade.After washing her hands, defendant called 911. Emergency responders found McKee in alarge pool of blood gasping for air with shallow breaths. He was transported to thehospital where the emergency room doctor characterized him as in critical condition. Hehad 14 cuts and stab wounds, suffered bilateral pneumothorax and remained hospitalizedfor a week. Photographs of his various scars as a result of the incident were received intoevidence.
Defendant's version of events was included in a detailed statement that she gave topolice, which was received into evidence. According to her, McKee came homeintoxicated and threw a glass jar at her, grabbed her hair, jerked her head back and held aknife to her throat. As he started hitting her, he apparently dropped the knife, which shepicked up as she then began swinging wildly with both arms, apparently striking McKeeseveral times with the knife. Defendant further elicited medical proof that McKee's backand chest wounds were no more than 1 to 1
Viewing the extensive proof in the light most favorable to the People (see Peoplev Contes, 60 NY2d 620, 621 [1983]), there was legally sufficient evidence to supportthe convictions. As regards the weight of the evidence, since a different verdict wouldnot have been unreasonable, we "must, like the trier of fact below, 'weigh the relativeprobative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony' " (People v Bleakley,69 NY2d at 495, quoting People ex rel. MacCracken v Miller, 291 NY 55, 62[1943]). Conflicting proof was presented on key issues and the verdict [*3]turned in large part on credibility determinations. Weaccord deference to "the fact-finder's opportunity to view the witnesses, hear thetestimony and observe demeanor" (People v Romero, 7 NY3d 633, 644 [2006] [internalquotation marks and citation omitted]). After weighing the proof in the record andviewing the evidence in a neutral light, while giving deference to the jury's difficultcredibility determinations, we are unpersuaded that the verdict was against the weight ofthe evidence. Nor was it against the weight of the evidence, as separately argued bydefendant, for the jury to reject defendant's justification defense (see People v Dale, 115 AD3d1002, 1006 [2014]; Peoplev Fisher, 89 AD3d 1135, 1137-1138 [2011], lv denied 18 NY3d 883[2012]).
Defendant argues that County Court erred in not allowing her expert, a police officerwith expertise in assaults and knives, to testify. The admissibility of expert testimonyrests primarily within the trial court's discretion in light of the particular facts andcircumstances (see People vLeGrand, 8 NY3d 449, 455-456 [2007]; People v Cronin, 60 NY2d 430,433 [1983]). Significantly, here, as part of their proof, the People elicited testimony frompolice indicating that they relied on the extensive nature of McKee's wounds in believinghis version and decided to charge defendant. Defendant stated that her expert would havetestified that the nature of defendant's injuries and McKee's wounds were notinconsistent with defensive action by defendant. Given the sharply conflicting proof onthis key factual issue at trial and the testimony by police regarding the issue on behalf ofthe People, defendant should have been permitted to have her expert testify.[FN*] We further note that,despite defendant's request, County Court gave a charge on the justification defense thatwas inconsistent with the holding in People v Jones (3 NY3d 491, 494 [2004] [expressly findingerror where, as here, the trial court found it preferable "to avoid any confusion on the partof the jury by not mentioning the duty to retreat at all, as opposed to mentioning ageneral duty to retreat and then qualifying that duty by delineating the applicable homeexception"]). The combination of errors on a close and highly contested issue persuadesus that the judgment of conviction must be reversed and defendant granted a new trial(see People v Hartman, 64AD3d 1002, 1005 [2009], lv denied 13 NY3d 860 [2009]).
The remaining issues are academic, including the separate appeal from the orderdenying defendant's motion to settle the record on appeal.
Peters, P.J., Garry, Rose and Egan Jr., JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Saratoga County for anew trial. Ordered that the appeal from the order is dismissed, as academic.
Footnote *:We note that we aremaking no determination whether a demonstration prepared by the expert, which was setforth on a DVD, should have been shown to the jury since that demonstration may besubject to other relevant objections.