| People v Ashline |
| 2015 NY Slip Op 00037 [124 AD3d 1258] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vBryan M. Ashline, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), fordefendant-appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of counsel), forrespondent.
Appeal from a judgment of the Steuben County Court (Joseph W. Latham, J.),rendered December 21, 2011. The judgment convicted defendant, upon a jury verdict, ofmurder in the first degree (two counts), murder in the second degree (two counts),aggravated criminal contempt and criminal possession of a weapon in the thirddegree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reversing those parts convicting defendant of two counts of murder in thesecond degree and dismissing counts three and four of the indictment and as modified thejudgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, two counts of murder in the first degree (Penal Law§ 125.27 [1] [a] [viii]; [b]) and two counts of murder in the second degree(§ 125.25 [1]). The charges arose from the brutal killing of defendant'sex-girlfriend and her infant son on Father's Day. Defendant admitted to the killings butasserted the affirmative defense of extreme emotional disturbance with respect to bothmurder in the first degree (§ 125.27 [2] [a]) and murder in the seconddegree (§ 125.25 [1] [a]).
We note at the outset that, as the People correctly concede, those parts of thejudgment convicting defendant of murder in the second degree must be reversed andthose counts dismissed because they are inclusory concurrent counts of the two counts ofmurder in the first degree (see CPL 300.40 [3] [b]; People v Howard, 92 AD3d1219, 1220 [2012], lv denied 19 NY3d 864 [2012], reconsiderationdenied 19 NY3d 997 [2012]). We therefore modify the judgment accordingly.
We reject defendant's contention that his statements to the police were notvoluntarily made because he suffered from sleep deprivation during the questioning andalso was in pain due to his hand injury. The record of the suppression hearing establishesthat defendant was asleep when he was apprehended and that he slept during the almosthour-long transport between police stations, and, indeed, he did not testify at thesuppression hearing that he was tired at the time of questioning (see People vPearce, 283 AD2d 1007, 1007 [2001], lv denied 96 NY2d 923 [2001];People v Orso, 270 AD2d 947, 947 [2000], lv denied 95 NY2d 856[2000]). The record also establishes that defendant was alert and made coherentdecisions about the topics of discussion with the police. Furthermore, with respect todefendant's hand injury, "[t]he record establishes that defendant did not complain of orshow outward signs that he was in pain while being questioned" (Pearce, 283AD2d at 1007). Based on the totality of the circumstances, we conclude that defendant'sstatements to the police were voluntarily made (see People v Young, 303 AD2d952, 953 [2003]; Pearce, 283 AD2d at 1007; see generally People vAnderson, 42 NY2d 35, 38-39 [1977]).
Defendant further contends that he was improperly restrained in handcuffs during thesuppression hearing, which hindered his ability to participate meaningfully in hisdefense, and [*2]that the court committed reversible errorin requiring him to wear a stun belt during the trial without setting forth a reason for theuse of the stun belt. With respect to being restrained in handcuffs, the court denieddefense counsel's request to remove defendant's handcuffs during the suppressionhearing in accordance with the County Sheriff's policy. Although the court's responsewas error, inasmuch as a court "must state a particularized reason for [restrainingdefendant] on the record" even at a bench trial (People v Best, 19 NY3d 739, 743 [2012]), we neverthelessconclude that the error is harmless beyond a reasonable doubt because the error "did notcontribute to the [court's decision]" on the suppression issue (People v Clyde, 18 NY3d145, 153 [2011], cert denied 566 US &mdash, 132 S Ct 1921 [2012][internal quotation marks omitted]; see People v Campbell, 106 AD3d 1507, 1509 [2013],lv denied 21 NY3d 1002 [2013]). With respect to the stun belt, we note that therequirement to wear the stun belt is not a mode of proceedings error and, therefore, suchan error may be waived (seegenerally People v Schrock, 108 AD3d 1221, 1224-1225 [2013], lvdenied 22 NY3d 998 [2013]). Here, defendant waived his contention because heagreed to wear the stun belt, despite the court having informed defendant that he wasentitled to a hearing to make findings as to the necessity of the belt (see generallyid.; People v Worth, 233 AD2d 939, 940 [1996]).
We also reject defendant's contention that the court abused its discretion by admittingin evidence certain photographs of the victims and crime scene (see generally Peoplev Pobliner, 32 NY2d 356, 369-370 [1973], rearg denied 33 NY2d 657[1973], cert denied 416 US 905 [1974]). Here, the photographs were relevant toshow defendant's intent to kill, to corroborate the Medical Examiner's testimonyconcerning the cause of death, and to aid the jury in determining whether the victims'wounds and crime scene provided evidence that defendant acted under the influence ofextreme emotional disturbance (see People v Stevens, 76 NY2d 833, 836 [1990];People v Camacho, 70AD3d 1393, 1394 [2010], lv denied 14 NY3d 886 [2010]; People v Jones, 43 AD3d1296, 1297-1298 [2007], lv denied 9 NY3d 991 [2007], reconsiderationdenied 10 NY3d 812 [2007]; People v Giles, 20 AD3d 863, 864 [2005], lvdenied 5 NY3d 806 [2005]).
We further reject defendant's contention that the evidence is legally insufficient tosupport the conviction of murder in the first degree inasmuch as he established thedefense of extreme emotional disturbance by a preponderance of the evidence. Asdefendant correctly concedes, he failed to preserve that contention for our reviewbecause he made only a general motion for a trial order of dismissal (see People vGray, 86 NY2d 10, 19 [1995]). In any event, defendant's contention lacks merit(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The defense ofextreme emotional disturbance requires evidence " 'of a subjective element, thatdefendant acted under an extreme emotional disturbance, and an objective element, thatthere was a reasonable explanation or excuse for the emotional disturbance' " (People v Diaz, 15 NY3d40, 44-45 [2010]; see People v Roche, 98 NY2d 70, 75-76 [2002];People v Domblewski, 238 AD2d 916, 916 [1997], lv denied 90 NY2d904 [1997]). Generally, a defendant receives the benefit of the defense "only when thetrier of fact, after considering a broad range of mitigating circumstances, believes thatsuch leniency is justified" (People v Casassa, 49 NY2d 668, 681 [1980], certdenied 449 US 842 [1980]; see Domblewski, 238 AD2d at 916). Here, thejury was entitled to consider defendant's conduct immediately before and after thekillings (see People v Jarvis,60 AD3d 1478, 1479 [2009], lv denied 12 NY3d 916 [2009]; People v McGrady, 45 AD3d1395, 1395 [2007], lv denied 10 NY3d 813 [2008]; Domblewski,238 AD2d at 916), from which the jury could reasonably conclude that defendant failedto meet his burden of establishing the defense (see generally Bleakley, 69 NY2dat 495). Furthermore, viewing the evidence in the light of the elements of the crimes ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (seePeople v Sorrentino, 12 AD3d 1197, 1197 [2004], lv denied 4 NY3d748 [2004]; People v Burse, 234 AD2d 950, 950 [1996], lv denied 89NY2d 1033 [1997]; see generally Bleakley, 69 NY2d at 495).
Defendant contends that he was deprived of effective assistance of counsel based ondefense counsel's failure to object to the use of the stun belt and the failure to make aspecific rather than a general motion for a trial order of dismissal. We reject thatcontention. Inasmuch as defendant waived his contention concerning the stun belt byconsenting to wear it, defense counsel was not ineffective for failing to object to the useof the stun belt (see generally Schrock, 108 AD3d at 1225). Further, "[t]he failureto provide a specific basis for a trial order of dismissal that had no chance of successdoes not constitute ineffective assistance of counsel" (People v Woodard, 96 AD3d 1619, 1621 [2012], lvdenied 19 NY3d 1030 [2012]; see generally People v Stultz, 2 NY3d 277, 287 [2004],rearg denied 3 NY3d 702 [2004]).
Finally, defendant's sentence is not unduly harsh or severe. Present—Smith,J.P., Peradotto, Valentino, Whalen and DeJoseph, JJ.