| People v Campanella |
| 2012 NY Slip Op 07483 [100 AD3d 1420] |
| November 9, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v LindaCampanella, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered August 11, 2010. The judgment convicted defendant, upon a jury verdict, of murder inthe second 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 ofmurder in the second degree (Penal Law § 125.25 [1] [intentional murder]). Viewing theevidence in the light most favorable to the People, we conclude that the evidence is legallysufficient to establish defendant's intent to kill the victim (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Moreover, viewing the evidence in light of the elementof intent as charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict with respectto that element is not against the weight of the evidence (see generally Bleakley, 69NY2d at 495).
Contrary to defendant's contention, Supreme Court did not err in permitting the MedicalExaminer to testify regarding the victim's cause of death, i.e., that the victim died fromcomplications resulting from a stab wound to the abdomen (see People v Odell, 26 AD3d 527, 529 [2006], lv denied 7NY3d 760 [2006]; People v Klosin, 281 AD2d 951, 951-952 [2001], lv denied 96NY2d 864 [2001]; see also People v McCart, 157 AD2d 194, 197 [1990], lv denied76 NY2d 861 [1990]). "It is axiomatic that expert testimony is admissible where, as here, theconclusions drawn from the facts depend upon professional knowledge not within the ken of theordinary juror" (Odell, 26 AD3d at 529). Indeed, expert medical testimony generally isrequired to establish that the defendant's conduct was a cause of death (see People vEberle, 265 AD2d 881, 882 [1999]; McCart, 157 AD2d at 197).
Defendant's further contention that the court erred in allowing the Medical Examiner totestify that the victim's death was a homicide is not preserved for our review (see CPL470.05 [2]). In any event, although we note that the People correctly concede that "it was error toallow the [Medical Examiner] to . . . opine that the death was a homicide, since'[s]uch characterization improperly invaded the province of the jury' " (People v Heath, 49 AD3d 970, 973[2008], lv denied 10 NY3d 959 [2008]; see People v Lluveres, 15 AD3d 848, 849 [2005], lv denied5 NY3d 807 [2005]), we conclude that the error is harmless. The Medical Examiner stated thathe was not making a legal determination [*2]by characterizing thevictim's death as a homicide and added that he used the term "homicide" only to indicate that thevictim died at the hands of another person (see Odell, 26 AD3d at 529; cf.Lluveres, 15 AD3d at 849). Viewing the evidence, the law and the circumstances of thiscase, in totality and as of the time of the representation, we also reject defendant's contention thatshe was denied effective assistance of counsel (see generally People v Baldi, 54 NY2d137, 147 [1981]).
We further conclude that the court properly denied defendant's challenges for cause to twoprospective jurors. "It is well settled that a prospective juror whose statements raise a seriousdoubt regarding the ability to be impartial must be excused unless the [prospective] juror statesunequivocally on the record that he or she can be fair and impartial" (People v Baker, 89 AD3d 1431,1431 [2011], lv denied 18 NY3d 856 [2011] [internal quotation marks omitted]; seePeople v Chambers, 97 NY2d 417, 419 [2002]). We conclude that the first prospective jurorat issue, who owned a security business, never expressed any doubt concerning his ability to befair and impartial (see People vOdum, 67 AD3d 1465, 1465 [2009], lv denied 14 NY3d 804 [2010], 15 NY3d755 [2010], cert denied 562 US —, 131 S Ct 326 [2010]; People v Smith, 48 AD3d 489,489 [2008], lv denied 10 NY3d 870 [2008]). We reach the same conclusion with respectto the second prospective juror at issue, who acknowledged having a friend and an acquaintancein law enforcement (see People v Pickren, 284 AD2d 727, 727 [2001], lv denied96 NY2d 923 [2001]; see also People v Colon, 71 NY2d 410, 418 [1988], certdenied 487 US 1239 [1988]). In any event, "[e]ven assuming, arguendo, that the initialstatements of the [second] prospective juror raised a serious doubt regarding his ability to beimpartial, we conclude that [he] ultimately stated unequivocally that he could be fair"(Baker, 89 AD3d at 1432 [internal quotation marks omitted]; see Chambers, 97NY2d at 419). Finally, we conclude that the sentence is not unduly harsh or severe.Present—Fahey, J.P., Peradotto, Carni, Whalen and Martoche, JJ.