| People v Nauheimer |
| 2016 NY Slip Op 05826 [142 AD3d 760] |
| August 17, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vScott A. Nauheimer, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of counsel), fordefendant-appellant.
Scott A. Nauheimer, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.),rendered November 8, 2012. The judgment convicted defendant, upon a jury verdict, ofmanslaughter in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofmanslaughter in the first degree (Penal Law § 125.20 [1]), defendantcontends that he was deprived of effective assistance of counsel because his attorneyfailed to recognize and pursue a justification defense at trial pursuant to Penal Law§ 35.20 (3), which permits the use of deadly physical force "to prevent orterminate the commission or attempted commission" of a burglary. We reject thatcontention. There is no dispute that defendant killed the unarmed victim, who was anacquaintance of defendant, by stabbing him in the chest with a 10-inch butcher knifeinside the home in which defendant lived. The knife struck the victim's heart, causing hisdeath. Instead of pursuing a justification defense at trial, defense counsel argued thatdefendant did not intend to kill the victim, and that the stabbing was accidental. There isno evidence in the record that the victim was committing a burglary, and the defensepursued by counsel was consistent with defendant's trial testimony. Notably, defendantdid not testify that he stabbed the victim to prevent him from committing a burglary;instead, he testified that the stabbing was accidental. If, as defendant claimed, thestabbing was accidental, it could not have been justifiable under Penal Law§ 35.20 (3). In any event, we note that defense counsel's strategy was notwholly unsuccessful, inasmuch as the jury acquitted defendant of murder in the seconddegree and convicted him of manslaughter in the first degree as a lesser includedoffense.
Although defense counsel could have argued that defendant did not intend to kill thevictim, but that, even if he did, defendant did so to prevent or terminate a burglary, the"hazardous" nature of pursuing inconsistent defenses is well established, "for it not onlyrisks confusing the jury as to the nature of the defense but also may well taint adefendant's credibility in the eyes of the jury" (People v DeGina, 72 NY2d 768,777 [1988]; see People v Myers, 283 AD2d 258, 259 [2001], lv denied 96NY2d 922 [2001]). Under the circumstances, counsel's failure to request a justificationcharge "may have been based on a reasonable strategic determination that such a chargewould be counterproductive and difficult to reconcile with the accidental [stabbing]claim" (People v Poston, 95AD3d 729, 730-731 [2012], lv denied 19 NY3d 1104 [2012]; seegenerally People v Benevento, 91 NY2d 708, 712-713 [1998]; People vRivera, 71 NY2d 705, 708-709 [1988]). To the extent that defendant contends thatdefense counsel did not understand the law as it related to justification under Penal Law§ 35.20 (3), such contention is based on matters outside the record and isappropriately raised by way of a CPL 440.10 motion (see People v Youngs, 101 AD3d 1589, 1589 [2012], lvdenied 20 NY3d 1105 [2013]; People v Paduano, 84 AD3d 1730, 1731[2011]).
[*2] We have reviewed defendant'sremaining contentions raised in his main and pro se supplemental briefs and concludethat none warrants reversal or modification of the judgment. Present—Peradotto,J.P., Carni, Lindley, Curran and Troutman, JJ.