| People v Knapp |
| 2010 NY Slip Op 09807 [79 AD3d 1805] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kirssy Knapp,Also Known as Kirssy Medos, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.),rendered September 11, 2009. The judgment convicted defendant, upon a jury verdict, of bodystealing (26 counts), opening graves (26 counts), unlawful dissection of the body of a humanbeing (26 counts) and falsifying business records in the first degree (25 counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of 26counts each of body stealing (Public Health Law § 4216), opening graves (§ 4218),and unlawful dissection of the body of a human being (§ 4210-a), as well as 25 counts offalsifying business records in the first degree (Penal Law § 175.10). Defendant failed topreserve for our review her contention that the counts of the indictment charging her with bodystealing and opening graves were duplicitous (see People v Sponburgh, 61 AD3d 1415 [2009], lv denied12 NY3d 929 [2009]). Defendant likewise failed to preserve for our review her contention thatshe should have been permitted to assert Public Health Law § 4306 (3) as a "completedefense" to her prosecution under Public Health Law article 42 inasmuch as she failed to raisethat contention either in her pretrial motions or prior to the close of proof at trial (see generally People v Fuentes, 52AD3d 1297 [2008], lv denied 11 NY3d 736 [2008]; People v Hill, 236AD2d 799 [1997], lv denied 89 NY2d 1036 [1997]). We decline to exercise our power toreview those contentions as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]). Defendant further contends that Supreme Court erred in denying her request tocharge the jury on the "good faith" defense set forth in Public Health Law § 4306 (3).Insofar as defendant contends that the court erred in refusing to charge Public Health Law§ 4306 (3) with respect to the falsifying business records counts, we conclude that shewaived that contention inasmuch as she acknowledged at trial that section 4306 (3) is not adefense to those counts (see generallyPeople v Harris, 74 AD3d 1844 [2010], lv denied 15 NY3d 893 [2010]). As forthe remaining counts, we conclude that there is no reasonable view of the evidence thatdefendant acted "in good faith in accord with the terms of [article 43]," which concernsanatomical gifts (Public Health Law § 4306 [3]; see generally People v Williams, 74 AD3d 1834 [2010], lvdenied 15 NY3d 857 [2010]; People v Cobb, 72 AD3d [*2]1565, 1567 [2010], lv denied 15 NY3d 803 [2010]). Theevidence introduced at trial established that defendant and the BioMedical Tissue Services (BTS)employees under her supervision removed tissue and/or bone from the decedents without consentfrom the donors or their next of kin. Indeed, the People presented evidence establishing thatdefendant instructed BTS employees to sign blank consent forms as witnesses for use in futurerecoveries, and those forms were subsequently filled out with false information. Notably,numerous falsified consent forms and other BTS records related to the illegal recoveries were indefendant's handwriting or bore defendant's signature.
Defendant's constitutional challenge to Public Health Law article 42 is not properly before usinasmuch as there is no indication in the record that the Attorney General was given the requisitenotice of that challenge (see Executive Law § 71 [3]; People v Perez, 67 AD3d 1324,1326 [2009], lv denied 13 NY3d 941 [2010]). In any event, that challenge is unpreservedfor our review inasmuch as defendant did not move to dismiss the indictment on the ground thatthe Public Health Law statutes in question are unconstitutionally vague, either facially or asapplied (see People v Iannelli, 69 NY2d 684 [1986], cert denied 482 US 914[1987]; cf. People v Bakolas, 59 NY2d 51, 53 [1983]), and defendant did not otherwisemake her position on that issue known to the court prior to or during the course of the trial(see Iannelli, 69 NY2d at 685). The belated constitutional challenge raised by defendantin her post-trial motion to set aside the verdict pursuant to CPL 330.30 is insufficient to preservethat challenge for our review (see People v Davidson, 98 NY2d 738, 739-740 [2002]).
In her motion for a trial order of dismissal, defendant failed to raise any of the specificchallenges now raised on appeal and thus failed to preserve for our review her challenges to thelegal sufficiency of the evidence (see People v Gray, 86 NY2d 10, 19 [1995]). Defendantlikewise failed to preserve for our review her challenges to the jury instructions inasmuch as shedid not raise those challenges at trial (see CPL 470.05 [2]; Cobb, 72 AD3d at1566-1567; People v Burch, 256 AD2d 1233 [1998], lv denied 93 NY2d 871[1999]), and we decline to exercise our power to review those challenges to the jury instructionsas a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Finally, we reject the contention of defendant that she was denied effective assistance ofcounsel based on defense counsel's failure to make certain motions. It is well established that"[d]eprivation of appellate review . . . does not per se establish ineffectiveassistance of counsel" (People vAcevedo, 44 AD3d 168, 173 [2007], lv denied 9 NY3d 1004 [2007]). "[R]ather,a defendant must also show that his or her [motion] would be meritorious upon appellate review"(People v Bassett, 55 AD3d1434, 1438 [2008], lv denied 11 NY3d 922 [2009]), and here defendant failed tomake that showing. Moreover, viewed as a whole and as of the time of the representation, therecord reflects that trial counsel provided meaningful representation (see generally People vBaldi, 54 NY2d 137, 147 [1981]). Present—Centra, J.P., Peradotto, Carni andSconiers, JJ.