| People v Chancey |
| 2015 NY Slip Op 03197 [127 AD3d 1409] |
| April 16, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vThomas A. Chancey, Appellant. |
Eugene P. Grimmick, Troy, for appellant.
Joel E. Abelove, District Attorney, Troy (Vincent J. O'Neill of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Rensselaer County(McGrath, J.), rendered March 9, 2006, upon a verdict convicting defendant of the crimeof murder in the second degree.
Defendant and the victim lived together in a long-term relationship that began todeteriorate early in 2005, with mutual allegations of infidelity and incidents of physicalviolence and verbal abuse. These incidents culminated on August 12, 2005, whendefendant killed the victim by repeatedly striking her in the head with a hammer. He wasindicted on one count of murder in the second degree and, after a jury trial at which hedenied that he intended to cause the victim's death and raised the affirmative defense ofextreme emotional disturbance, he was convicted as charged. County Court sentencedhim to 25 years to life in prison, and he now appeals.
Defendant argues that the verdict is against the weight of the evidence because hedid not intend to cause the death of the victim and he acted under the influence of anextreme emotional disturbance. Where, as here, a different verdict would not have beenunreasonable, we will "weigh the relative probative force of conflicting testimony andthe relative strength of conflicting inferences that may be drawn from the testimony" (People v Molina, 79 AD3d1371, 1374 [2010], lv denied 16 NY3d 861 [2011] [internal quotation marksand citations omitted]; accordPeople v Ford, 90 AD3d 1299, 1301 [2011], lv denied 18 NY3d 994[2012]). Murder in the second degree requires proof that defendant intentionally causedthe victim's death (see Penal Law § 125.25 [1]). If the affirmativedefense of extreme emotional disturbance is established by [*2]showing that the homicidal act was "an understandablehuman response deserving of mercy" (People v Casassa, 49 NY2d 668, 680-681[1980], cert denied 449 US 842 [1980]), the conviction will be reduced tomanslaughter in the first degree (see Penal Law § 125.25 [1] [a];People v Harris, 95 NY2d 316, 318-319 [2000]; People v Benson, 119 AD3d1145, 1146-1147 [2014], lv denied 24 NY3d 1118 [2015]). The defense,which must be established by a preponderance of the evidence (see Penal Law§§ 25.00 [2]; 125.25 [1] [a]), has two components, a subjective onerequiring that the defendant "acted under the influence of extreme emotionaldisturbance" and an objective one requiring "a reasonable explanation" for the emotionaldisturbance "determined from the viewpoint of a person in the defendant's situationunder the circumstances as the defendant believed them to be" (People v Cass, 18 NY3d553, 561 [2012] [internal quotation marks and citation omitted]; see People vHarris, 95 NY2d at 319; People v Pavone, 117 AD3d 1329, 1331-1332 [2014],lv granted 24 NY3d 963 [2014]).
Defendant, who was 6 feet 2 inches tall and weighed 175 pounds, admitted that, inFebruary 2005, he and the victim, who was 5 feet 5 inches tall and weighed 140 pounds,engaged in a heated, physical argument in his car while he was driving on the Thruway.In the course of the argument, which concerned the victim's infidelity to defendant, hestruck her, kicked her out of the car and left her stranded on the side of the highway.Following that incident, their arguments continued, with the victim also repeatedlyaccusing defendant of being unfaithful, a charge that he denied. Defendant eventuallyleft their apartment at the victim's request, but he slept in his car and called her "8 milliontimes" until she allowed him to return. Defendant testified that the week leading up to thefatal encounter was marked with continuing arguments, and he took back theengagement ring that he had given to the victim and she again asked him to move out ofthe apartment. They also continued to argue about, among other things, his plan to takeback a computer that he had purchased for her. Defendant then spent a few nights awayfrom the apartment but, on the day prior to the killing, he and the victim engaged inanother heated argument that ended when the victim locked herself in her vehicle andcalled 911 in an attempt to get away from defendant, who broke one of the windows inthe car before fleeing the scene.
On the fatal night, the victim picked defendant up at his social club and they arguedin her vehicle, with the victim apparently slashing defendant with a sharp nail-careinstrument. The couple proceeded to the apartment to dress defendant's cuts, where theargument escalated. After asking if defendant was going to "give [her] an ass whipping,"the victim picked up defendant's hammer, to which he responded, "you want to hit mewith a hammer[?]" The victim swung the hammer at defendant but missed, then droppedit on the floor and sat down at her computer desk. As they continued to exchange angryrecriminations, defendant picked up the hammer and hit the victim with it, testifying thathe only remembers striking her once before he "went blank." The medical examiner whoconducted the victim's autopsy testified that she had been struck three separate times onthe back of her head, causing severe skull fractures and brain injury secondary to bluntforce trauma. Trial evidence suggested that defendant moved the victim's body after hekilled her and attempted to clean up her blood before leaving, but then left her on thefloor of the apartment. He was arrested the next day.
"Defendant's intent may be inferred from both his actions and the surroundingcircumstances" (People vJohnson, 106 AD3d 1272, 1278 [2013] [citations omitted], lv denied 21NY3d 1043 [2013]; see Peoplev Kenyon, 108 AD3d 933, 937 [2013], lv denied 21 NY3d 1075[2013]). In light of the number and force of the blows inflicted while the victim was in adefenseless position, and giving appropriate deference to the jury's ability to view thewitnesses and assess their credibility, we find no basis to conclude that the verdictfinding that defendant acted with intent to cause the victim's death is against the weightof the evidence (see People v Ford, 90 AD3d at 1301-1302; People vMolina, 79 AD3d at 1376). Nor do we find the verdict rejecting the affirmativedefense of extreme emotional disturbance to be against the weight of the evidence(see People v Benson, 119 AD3d at 1148). Rather than reflecting a one-time,out-of-character loss of self-control resulting from the stresses that defendant had beenexperiencing (see e.g. People vSepe, 111 AD3d 75, 87 [2013], appeal dismissed 22 NY3d 1126[2014]), the evidence supports a conclusion that the murder reflected the mutuallyabusive and physically violent nature of defendant's relationship with the victim, herescalating antipathy toward him and his ultimate reaction out of sheer anger, jealousy andan attempt to salve his wounded pride.
We are also unpersuaded by defendant's contention that he was deprived of a fairtrial by the prosecutor's comments during summation. The prosecutor's statements thatdefendant was a "domestic abuser" were fair comments in light of the evidence ofdefendant's physically violent relationship with the victim and as a counterargument todefendant's claim that the victim's death was an isolated incident (see People v Simmons, 111AD3d 975, 980-981 [2013], lv denied 22 NY3d 1203 [2014]; People v Rowe, 105 AD3d1088, 1091 [2013], lv denied 21 NY3d 1019 [2013]; People vDickson, 58 AD3d 1016, 1018 [2009], lv denied 12 NY3d 852 [2009]).Although there was no evidence to support the prosecutor's comment that defendant wasa "[s]talker," and the comment that defense counsel was "play[ing] games" wasinappropriate, defendant's objections were sustained, County Court gave an immediatecurative instruction to the jury regarding the stalker comment and the fleeting nature ofthese two comments do not reflect a "flagrant and pervasive pattern of prosecutorialmisconduct" (People v Dickson, 58 AD3d at 1018 [internal quotation marks andcitation omitted]; see People vStory, 81 AD3d 1168, 1169 [2011]; People v Cardenas, 79 AD3d 1258, 1262 [2010], lvdenied 16 NY3d 857 [2011]).
Defendant's claim that County Court failed to administer the oath of truthfulnessrequired by CPL 270.15 (1) (a) to the potential jurors is not preserved for our review, asit must be (see CPL 470.05 [2]; People v McDade, 64 AD3d 884, 888 [2009], affd14 NY3d 760 [2010]; People vHampton, 64 AD3d 872, 877 [2009], lv denied 13 NY3d 796 [2009]; compare People v Hoffler, 53AD3d 116, 120-121 [2008], lv denied 11 NY3d 832 [2008]). In the absenceof any objection drawing County Court's attention to the alleged impropriety, no recordwas made to establish that the appropriate oath was not administered to the potentialjurors. Moreover, contrary to defendant's contention, we have not held that the failure togive the oath is a "mode of proceedings" error that qualifies as a narrow exception to thepreservation requirement (People v Becoats, 17 NY3d 643, 650-651 [2011], certdenied 566 US &mdash, 132 S Ct 1970 [2012]). Rather, if properly preserved, the error is"fundamental," meaning that it requires reversal even in the absence of any showing ofprejudice suffered by a defendant (People v Hoffler, 53 AD3d at 121, 122-123).Although defendant claims that, given our holding in People v Hoffler(supra) defense counsel's failure to raise any objection constitutes ineffectiveassistance of counsel, we note that the trial in this matter occurred prior to our decision inHoffler.
Finally, given the seriousness of the crime and defendant's criminal history, we findno abuse of discretion or extraordinary circumstances warranting a reduction of thesentence (see People vCade, 110 AD3d 1238, 1240 [2013], lv denied 22 NY3d 1155 [2014];People v Kenyon, 108 AD3d at 942; People v Rollins, 51 AD3d 1279, 1282-1283 [2008], lvdenied 11 NY3d 930 [2009]).
Peters, P.J., Garry and Lynch, JJ., concur. Ordered that the judgment is affirmed.