| People v Hartman |
| 2011 NY Slip Op 05896 [86 AD3d 711] |
| July 14, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Brenda L.Hartman, Appellant. |
—[*1] William G. Gabor, District Attorney, Wampsville (Robert A. Mascari of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Madison County (McDermott,J.), rendered January 5, 2010, upon a verdict convicting defendant of the crimes of manslaughterin the first degree, assault in the first degree and criminal possession of a weapon in the thirddegree.
The background facts are set forth more fully in our decision reversing defendant'sconviction after her first trial (People vHartman, 64 AD3d 1002 [2009], lv denied 13 NY3d 860 [2009]). Briefly, theacrimonious relationship of defendant and her paramour was marked by each individualfrequently assailing the other verbally and physically. During the course of one of their manydisagreements, defendant stabbed her paramour in the back with a butcher knife as he waskneeling on the floor. After giving varying stories to rescue personnel and police, she eventuallytestified at trial that she intended only to "poke" him enough to scare him. He died as a result ofthe injury. Upon retrial after reversal, a jury convicted defendant of manslaughter in the firstdegree, assault in the first degree and criminal possession of a weapon in the third degree. Shewas sentenced, as a predicate felon, to concurrent prison terms of 20 years and five years ofpostrelease supervision for manslaughter and assault, and 3 to 6 years for criminal possession ofa weapon. Defendant appeals.[*2]
We consider first defendant's argument that County Courterred in not granting her request to give the jury a justification charge. "This instruction isappropriate where, viewing the evidence in the light most favorable to the defendant, a jury,based upon any reasonable view of the evidence, could decide that the defendant's actions werejustified" (People v Vecchio, 240 AD2d 854, 855 [1997] [citations omitted]). As relevanthere, when a defendant employs deadly physical force, the defendant must reasonably believethat the victim is using or about to use deadly physical force (see Penal Law §35.15 [2] [a]; People v Goetz, 68 NY2d 96, 106 [1986]). There are both subjective andobjective components to the justification defense (see People v Umali, 10 NY3d 417, 425 [2008], cert denied556 US —, 129 S Ct 1595 [2009]).
Initially, we note that defendant employed deadly physical force as she admitted stabbing thevictim with sufficient force for the knife to penetrate into his back, and he died as a result of thatstab wound. Defendant testified at trial that, on the evening of the stabbing, the victim had calledher vulgar names, pushed and slapped her, and thrown foot powder in her face. Oncross-examination, she acknowledged that the victim had not threatened her with any type ofdangerous instrument or indicated that he planned to use deadly physical force against her.Defendant agreed that the victim did not possess a dangerous instrument during the evening andher own testimony failed to demonstrate that she believed the victim posed an imminent risk ofusing deadly physical force on her. She nevertheless approached the victim from behind, stabbinghim in the back as he was unarmed and on his hands and knees looking for something on thefloor. In light of the proof at trial, County Court did not err in refusing to charge justification (see People v Artica, 39 AD3d1186, 1187 [2007]; People v Vecchio, 240 AD2d at 855).
Defendant asserts that County Court improvidently exercised its discretion when it ruled,after she had testified, that it would not permit her to produce an expert regarding battered personsyndrome. We are unpersuaded. "[B]attered person syndrome, while not a defense in its ownright, is 'relevant in the context of self-defense' " (People v Hartman, 64 AD3d 1002, 1005 [2009], lv denied13 NY3d 860 [2009], quoting People vWilcox, 14 AD3d 941, 943 [2005], lv denied 4 NY3d 837 [2005]; see J.Myers, Myers on Evidence in Child, Domestic & Elder Abuse Cases § 10.02). Here, theevidence at trial, including defendant's own testimony, undermined her claim of self-defense(see People v Wilcox, 14 AD3d at 943). Moreover, battered person syndrome typicallyinvolves the extensive use of physical and/or psychological abuse by one person in a relationshipagainst the other (see generally Erin D. Masson, Annotation, Admissibility of Expertor Opinion Evidence of Battered-Woman Syndrome on Issue of Self-Defense, 58 ALR5th749, § 2 [a]), and defendant acknowledged a tumultuous eight-year relationship in which,among other things, sometimes she would initiate violence and inflict wounds upon the victimand at other times he was the initial aggressor.
Finally, defendant contends that the sentence is harsh and excessive. We cannot agree.County Court set forth in detail its reasons for the sentence it imposed, which was less than themaximum permissible sentence. Defendant has failed to show an abuse of discretion by CountyCourt or extraordinary circumstances warranting a reduction of her sentence in the interest ofjustice (see People v Peryea, 68AD3d 1144, 1147 [2009], lv denied 14 NY3d 804 [2010]; People v Portee, 56 AD3d 947,950 [2008], lv denied 12 NY3d 820 [2009]).
Peters, J.P., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.