| People v Galens |
| 2013 NY Slip Op 07339 [111 AD3d 1322] |
| November 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vCynthia S. Galens, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua, for respondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.),rendered November 10, 2010. The judgment convicted defendant, upon a jury verdict, ofmanslaughter in the 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 juryverdict of manslaughter in the first degree (Penal Law § 125.20 [1]). We rejectdefendant's contention that she was denied effective assistance of counsel based upon herattorney's allegedly ineffectual and irrelevant arguments during summation. "Counselpresented a plausible defense of lack of intent to cause serious physical injury" (People v Russo, 4 AD3d133, 133 [2004], lv denied 2 NY3d 806 [2004]), and he effectively assertedthat theory to the jury in his summation (see People v Barrera, 69 AD3d 951, 952 [2010]). The factthat defense counsel also argued that defendant lacked intent to kill, which is not anelement of manslaughter in the first degree, did not prejudice defendant and did not alonerender the summation ineffective.
Nor was defense counsel ineffective in failing to object to alleged hearsay testimonyconcerning out-of-court statements made by the victim. The testimony at issue wasadmissible for the nonhearsay purpose of establishing the victim's deteriorated physicalcondition at the time his statements were made (see generally People v DiFabio,170 AD2d 1028, 1029 [1991], affd 79 NY2d 836 [1992]). In any event, evenassuming, arguendo, that the testimony at issue constituted inadmissible hearsay, thesingle error by defense counsel in failing to object to its admission was not so egregiousas to deprive defendant of a fair trial (see People v Hobot, 84 NY2d 1021, 1022[1995]; People v Cosby, 82AD3d 63, 67 [2011], lv denied 16 NY3d 857 [2011]). Defense counsel'sfailure to renew the motion for a trial order of dismissal does not constitute ineffectiveassistance inasmuch as the evidence is legally sufficient to support the conviction andrenewal of the motion had " 'little or no chance of success' " (People v Caban, 5 NY3d143, 152 [2005]; seePeople v Holt, 93 AD3d 1304, 1305 [2012], lv denied 20 NY3d 933[2012]).
Defendant failed to preserve for our review her further contention that she wasdenied a fair trial by the prosecutor's improper questions on cross-examinationconcerning the veracity of [*2]prosecution witnesses(see CPL 470.05 [2]; People v Washington, 89 AD3d 1516, 1516-1517 [2011],lv denied 18 NY3d 963 [2012]), and we decline to exercise our power to reviewthat contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]).
Finally, we reject defendant's contention that she was penalized for exercising herright to trial and that the sentence is otherwise unduly harsh and severe. "[T]he mere factthat a sentence imposed after trial is greater than that offered in connection with pleanegotiations is not proof that defendant was punished for asserting [her] right to trial" (People v Dorn, 71 AD3d1523, 1524 [2010] [internal quotation marks omitted]), nor does that fact render thesentence unduly harsh or severe (see People v Rawleigh, 89 AD3d 1483, 1485 [2011], lvdenied 18 NY3d 961 [2012]). We note that defendant intentionally poured a largequantity of antifreeze into the victim's margarita mix and then, after knowing that thevictim consumed the antifreeze, defendant failed to seek medical assistance for himdespite seeing him foaming at the mouth and struggling to breathe. Under thecircumstances, the sentence imposed by County Court, which is slightly less than themaximum sentence permitted by law, is appropriate. Present—Fahey, J.P.,Peradotto, Lindley, Sconiers and Whalen, JJ.