| People v Goley |
| 2014 NY Slip Op 00013 [113 AD3d 1083] |
| January 3, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Krista M. Goley, Appellant. |
—[*1] Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.),rendered March 16, 2012. The judgment convicted defendant, upon a jury verdict, ofmanslaughter in the first degree, criminal possession of a weapon in the fourth degree(two counts), endangering the welfare of a child (two counts), attempted assault in thesecond degree, perjury in the first degree and menacing in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted following a jury trial of, inter alia,manslaughter in the first degree (Penal Law § 125.20 [1]) for stabbing herboyfriend in the chest with a 12-inch steak knife and thereby causing his death. The juryacquitted defendant of murder in the second degree, as charged in the indictment.Defendant contends that the evidence is legally insufficient to support the manslaughterconviction and that the verdict with respect to that offense is against the weight of theevidence. Defendant failed to preserve for our review her contention concerning the legalsufficiency of the evidence by failing to renew her motion for a trial order of dismissalafter presenting evidence (see People v Hines, 97 NY2d 56, 61 [2001], reargdenied 97 NY2d 678 [2001]) and, in any event, we reject both of her contentions.With respect to the element of intent to cause serious physical injury, defendantadmittedly caused the victim's death by stabbing him in the chest with a knife, and "thejury could infer from defendant's conduct that [s]he intended to cause [such] injury" (People v Almonte, 7 AD3d324, 325 [2004], lv denied 3 NY3d 670 [2004], citing People vSteinberg, 79 NY2d 673, 685 [1992]).
With respect to defendant's proffered justification defense, there is no dispute that thevictim was unarmed when stabbed by defendant, and the evidence at trial established thathe was not using or attempting to use deadly physical force against her at the time.Although defendant told the police that the victim was about to strike her with a"hammer fist" when she stabbed him, we note that even a "crushing punch" is a "use ofordinary, not deadly, physical force" (People v Bradley, 297 AD2d 640,641 [2002], lv denied 99 NY2d 556 [2002]). We note that defendant concededduring her grand jury testimony, which was admitted in evidence at trial, that she told atleast five fellow inmates in jail that the victim was so drunk on the night in question thathe could barely stand but that she was nevertheless going to pursue a strategy ofself-defense. Defendant also testified before the grand jury that, although she told thepolice that she stabbed [*2]the victim in self-defense, thevictim essentially stabbed himself by pushing her hand toward his chest. That claim of aninadvertent stabbing was not included in the lengthy statement defendant gave to thepolice and was inconsistent with the trial testimony of the two witnesses who observedthe incident. Thus, based upon our independent review of the evidence pursuant to CPL470.15 (5), and viewing the evidence in light of the elements of the crimes as charged tothe jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we are satisfied that the jury's rejection ofthe justification defense was not contrary to the weight of the evidence (see People v Romero, 7 NY3d633, 643-644 [2006]).
We reject defendant's further contention that she was deprived of a fair trial byprosecutorial misconduct. Defendant failed to preserve for our review her contention thatthe prosecutor engaged in misconduct when, during the direct examination of a jailhouseinformant, she asked the witness whether the witness notified a correction officer thatdefendant spoke to her about "the murder." The record establishes that County Courtsustained defense counsel's objection to the prosecutor's use of the word "murder" anddefense counsel did not seek further relief, such as a curative instruction or a mistrial(see People v Tolbert, 283 AD2d 930, 931 [2001], lv denied 96 NY2d908 [2001]; see also People v McCovery, 254 AD2d 751, 751 [1998], lvdenied 92 NY2d 1051 [1999]). We note in any event that the indictment chargeddefendant with murder, and it was the People's theory of the case that she intentionallykilled the victim. Defendant also contends that the prosecutor engaged in misconduct bystating during her summation that defendant, in holding up a stool to ward off the victim,was "like a lion tamer." Defendant herself used that same language in describing heractions during her interview with the police, and we cannot conclude that it wasimproper for the prosecutor to describe defendant's actions in the same manner. We havereviewed defendant's remaining challenges to the alleged instances of prosecutorialmisconduct and conclude that none has merit.
We reject defendant's contention that she was deprived of effective assistance ofcounsel at trial because, among other reasons, her attorney failed to pursue a psychiatricdefense. The record establishes that defense counsel filed a motion seeking to requireJefferson County to pay for a psychological evaluation of defendant, and the courtgranted the motion. There is no indication in the record that the results of that evaluationsupported a psychiatric defense or that defendant otherwise suffered from a mentaldisease or defect. To the extent that defendant relies on matters outside the record onappeal in support of her contention, her remedy is by way of a CPL 440.10 motion (see People v Cobb, 72 AD3d1565, 1567 [2010], lv denied 15 NY3d 803 [2010]; People vShorter, 305 AD2d 1070, 1071 [2003], lv denied 100 NY2d 566 [2003]).
Although defendant also contends that defense counsel did not object to the court'sincreasing bail at arraignment on the indictment, the record establishes that defensecounsel stated at the time that defendant was indigent and could not afford the bail aspreviously set, i.e., $50,000 cash or $100,000 bond. In any event, defense counsel wasnot required to make an objection that had little or no chance of success (see People v Caban, 5 NY3d143, 152 [2005]). Here, when bail was initially set in local court, defendant wascharged with manslaughter in the second degree, and an increase in bail was justified bythe fact that the indictment, unlike the felony complaint, charged defendant with murderin the second degree. We further conclude that defense counsel was not ineffective infailing to renew her motion for a trial order of dismissal, nor was defense counselineffective for failing to object to the alleged instances of prosecutorial misconduct.Because the evidence is legally sufficient to support the conviction, renewal of themotion for a trial order of dismissal had " 'little or no chance of success' " (id.; see People v Galens, 111AD3d 1322, 1323 [2013]) and, as noted, the prosecutor did not engage inmisconduct.
In sum, "the evidence, the law and the circumstances of [this] case, viewed togetherand as of the time of representation, reveal that meaningful representation was provided"(People v [*3]Satterfield, 66 NY2d 796, 798-799[1985]; see generally People v Baldi, 54 NY2d 137, 147 [1981]), particularly inlight of the fact that defense counsel obtained an acquittal on the top count of theindictment, charging murder in the second degree.
Finally, contrary to defendant's contention, the police did not engage in "impropertactics," and thus defendant was not thereby deprived of due process.Present—Scudder, P.J., Centra, Lindley, Sconiers and Valentino, JJ.