| People v Bradley |
| 2011 NY Slip Op 02587 [83 AD3d 1444] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Dale Bradley,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Elizabeth Clifford of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Melchor E. Castro, A.J.), renderedSeptember 14, 2007. The judgment convicted defendant, upon a jury verdict, of manslaughter inthe first degree.
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 ofmanslaughter in the first degree (Penal Law § 125.20 [1]). Contrary to the contention ofdefendant, County Court properly weighed the probative value of the evidence of her prior badacts against any prejudice to her (see generally People v Ventimiglia, 52 NY2d 350[1981]; People v Molineux, 168 NY 264 [1901]). Although "the court should haveexpressly recited its discretionary balancing [of those factors] . . . , viewed in thecontext of the combined [Molineux/Ventimiglia and Sandoval] hearingsand defense counsel's opposition [to the evidence] based on its prejudicial effect, the court'sproper exercise of its discretion is implicit" (People v Milot, 305 AD2d 729, 731 [2003],lv denied 100 NY2d 585 [2003]; see People v Meseck, 52 AD3d 948, 950 [2008]; cf. People v Westerling, 48 AD3d965, 968 [2008]). Furthermore, " 'any prejudice to defendant was minimized by [the court's]limiting instructions' " (People vCarson, 4 AD3d 805, 806 [2004], lv denied 2 NY3d 797 [2004]). Defendantfailed to address in her brief on appeal any other issues with respect to theMolineux/Ventimiglia evidence, and thus she is deemed to have abandoned anycontentions with respect thereto (seegenerally People v Butler, 2 AD3d 1457, 1458 [2003], lv denied 3 NY3d 637[2004]; People v Jansen, 145 AD2d 870, 871 [1988], lv denied 73 NY2d 923[1989]).
We agree with defendant, however, that the court erred in refusing to instruct the jury withrespect to posttraumatic stress disorder insofar as it was relevant to the defense of justification.Prior to trial, defendant served a notice pursuant to CPL 250.10 indicating that she intended tointroduce evidence that she suffered from battered woman syndrome. At trial, defendant'spsychiatric expert testified regarding that syndrome and posttraumatic stress disorder, as did thePeople's expert in rebuttal. After the close of proof, the prosecutor requested that the court notinstruct the jury on posttraumatic stress disorder insofar as it was relevant to the defense ofjustification, based solely on the lack of specificity in the CPL 250.10 notice. As the Court ofAppeals recently noted, that "statutory notice provision is grounded on principles of [*2]fairness and is intended 'to prevent disadvantage to the prosecutionas a result of surprise' . . . [I]t 'was designed to allow the prosecution an opportunityto acquire relevant information from any source—not merely from an independentexamination of the defendant—to counter the defense' " (People v Diaz, 15 NY3d 40, 46[2010]). Thus, inasmuch as the People had sufficient notice to prepare a response to the defenseof justification, the court erred in refusing to give the instruction on that ground. Contrary todefendant's further contention, however, reversal is not required. Defense counsel was permittedto introduce relevant evidence and argue to the jury regarding both battered woman syndromeand posttraumatic stress disorder and, "[b]ecause there was overwhelming evidence disprovingthe justification defense and no reasonable possibility that the verdict would have been differenthad the charge been correctly given, the error in the . . . court's justification charge[is] harmless" (People v Petty, 7NY3d 277, 286 [2006]; see generally People v Crimmins, 36 NY2d 230, 241-242[1975]).
Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Smith,Peradotto, Lindley and Green, JJ.