| People v Trovato |
| 2009 NY Slip Op 09502 [68 AD3d 1023] |
| December 15, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AnneTrovato, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Valerie A. Livingston, RichardLongworth Hecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Zambelli, J.), rendered January 29, 2008, convicting her of murder in the second degree andburglary in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that two civilians, one of whom was her aunt, acted as agents ofthe police when they obtained statements from her in violation of her right to counsel is withoutmerit. With respect to recordings of telephone calls made by the defendant's aunt, the conduct ofthe defendant's aunt was not "so pervaded by governmental involvement that it los[t] itscharacter as [private conduct] and invoke[d] the full panoply of constitutional protections"(People v Ray, 65 NY2d 282, 286 [1985]). Instead, the telephone calls were made by aperson acting privately, and did not "fall within the ambit of this exclusionary rule" (People vVelasquez, 68 NY2d 533, 537 [1986]). The defendant's aunt was not acting "at theinstigation or under the supervision of the police" in providing the recordings of the telephonecalls (People v Jean, 13 AD3d 466, 467 [2004]; see People v Carvalho, 60 AD3d1394, 1395 [2009]; People v Johnson, 303 AD2d 830, 832-834 [2003]; People vLewis, 273 AD2d 254 [2000]). The recordings were unsolicited by the police, and weremade without "promise or inducement" by the police (People v Melendez, 285 AD2d819, 822 [2001]).
The other civilian who the defendant contends acted as an agent of the police did not testifyat the trial, and no evidence that may have been obtained from her by the police was offered inevidence. Thus, there was no violation of the defendant's right to counsel (cf. People vBurchard, 20 AD3d 818, 820 [2005]).
The defendant failed to show that her trial counsel's tactics, which opened the door to theadmission of certain evidence that had been previously precluded by the County Court, lackedlegitimate strategic purposes (see People v Caban, 5 NY3d 143, 152 [2005]), and that therisks of opening the door to such evidence outweighed its tactical advantages (see People vPennington, 27 AD3d 269, 270 [2006]; People [*2]vTaylor, 300 AD2d 746, 748 [2002]; People v Silvestre, 279 AD2d 364, 365 [2001]).The fact that trial counsel's tactics were unsuccessful does not constitute ineffective assistance ofcounsel (see People v Henry, 95 NY2d 563, 565 [2000]; People v Rivera, 71NY2d 705, 708 [1988]; People v Baldi, 54 NY2d 137, 146-147 [1981]; People vJoseph, 201 AD2d 506 [1994]). Moreover, the defendant's contention that her trial counselwas ineffective because he failed to reconsider a psychiatric defense which the defendant hadspecifically withdrawn on the record is without merit (see People v Thomas, 247 AD2d284 [1998]; see also People v Petrovich, 87 NY2d 961 [1996]; People v Constas,59 AD3d 729, 729-730 [2009]). Viewing the record as a whole, we find that the defendantreceived meaningful representation (see People v Henry, 95 NY2d at 565; People vBenevento, 91 NY2d 708, 712 [1998]; People v Orcutt, 49 AD3d 1082, 1087[2008]).
Contrary to the defendant's contention, the County Court properly refused to charge theaffirmative defense of extreme emotional disturbance. The defendant's behavior "immediatelybefore and after the killing was inconsistent with the loss of control associated with theaffirmative defense" (People v Murden, 190 AD2d 822, 822 [1993]). The defendantfailed to establish both the subjective and objective elements of the defense of extreme emotionaldisturbance (see People v Smith, 1 NY3d 610, 612 [2004]; People v Roche, 98NY2d 70, 75-77 [2002]; People v Harris, 95 NY2d 316, 318-320 [2000]). The CountyCourt also correctly declined to charge manslaughter in the first degree as a lesser-includedoffense of murder in the second degree, as no reasonable view of the evidence warranted such acharge (see People v Butler, 84 NY2d 627, 633-634 [1994]; People v Ramsey,59 AD3d 1046, 1047 [2009]; People v Tyler, 43 AD3d 633, 634 [2007]; People vBien, 1 AD3d 442, 443 [2003]; People v Collins, 290 AD2d 457, 458 [2002]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of burglary in the second degree beyond a reasonable doubt (see People vMackey, 49 NY2d 274, 280 [1980]; People v Caston, 60 AD3d 1147, 1149 [2009];People v Ostrander, 46 AD3d 1217, 1218 [2007]).
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hear thetestimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt on the charge of burglary inthe second degree was not against the weight of the evidence (see People v Romero, 7NY3d 633 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Rivera, J.P., Florio, Miller and Hall, JJ., concur.