| People v Beasley |
| 2017 NY Slip Op 01114 [147 AD3d 1549] |
| February 10, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v CrystalBeasley, Appellant. |
Sessler Law PC, Geneseo (Steven D. Sessler of counsel), for defendant-appellant.
Crystal Beasley, defendant-appellant pro se.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Robert B. Wiggins, J.), renderedJune 10, 2014. The judgment convicted defendant, upon a jury verdict, of assault in the firstdegree and criminal possession of a weapon in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting her following a jury trial of assault inthe first degree (Penal Law § 120.10 [1]) and criminal possession of a weapon inthe fourth degree (§ 265.01 [2]), defendant contends that County Court violatedCPL 300.10 (4) and 300.40 in its instructions to the jury with respect to the order in which thejury should consider the offenses charged in the indictment and the lesser included offense. Byfailing to object to the court's charge, defendant failed to preserve her contention for our review(see People v White, 191 AD2d 604, 604-605 [1993], lv denied 81 NY2d 1082[1993]; People v Sampson, 145 AD2d 910, 910 [1988], lv denied 73 NY2d 982[1989]), and we decline to exercise our power to review that contention as a matter of discretionin the interest of justice (see CPL 470.15 [6] [a]).
In her pro se supplemental brief, defendant contends that the court erred in refusing tosuppress her statements to the police. We reject that contention. Although defendant contendsthat she requested an attorney before she made oral statements to the police, the only witness totestify at the suppression hearing testified that defendant did not request an attorney until aftershe made the oral statements and refused to sign a written statement. The court's determination tocredit that testimony should not be disturbed (see People v Smith, 273 AD2d 896, 897[2000], lv denied 95 NY2d 938 [2000]; see generally People v Prochilo, 41 NY2d759, 761 [1977]). With respect to her contention that her statements were not knowingly,voluntarily or intelligently made due to her alleged intoxication, "[w]e note that defendantimproperly relies on trial testimony in challenging the court's suppression ruling" (People v Ojo, 43 AD3d 1367,1368 [2007], lv denied 10 NY3d 769 [2008], reconsideration denied 11 NY3d792 [2008]; see People v Cooper, 59AD3d 1052, 1054 [2009], lv denied 12 NY3d 852 [2009]). There was no evidence atthe suppression hearing that, at the time defendant spoke to the police, she " 'wasintoxicated to the degree of mania, or of being unable to understand the meaning of [her]statements' " (People v Schompert, 19 NY2d 300, 305 [1967], cert denied389 US 874 [1967]; see People vLake, 45 AD3d 1409, 1410 [2007], lv denied 10 NY3d 767 [2008]).
Defendant further contends in her pro se supplemental brief that the court erred in admittingin evidence recordings of 911 calls made by her on the night of the crimes. Even assuming,arguendo, that the court improperly admitted those recordings in evidence, we conclude that anysuch error is harmless inasmuch as the proof of defendant's guilt is overwhelming, and there is nosignificant probability that the jury would have acquitted defendant had that evidence not beenintroduced (see People v Spencer,96 AD3d 1552, 1553 [2012], lv denied 19 NY3d 1029 [2012], reconsiderationdenied 20 NY3d 989 [2012]; see generally People v Crimmins, 36 NY2d 230,241-242 [1975]).
Finally, defendant contends in her pro se supplemental brief that the verdict is against theweight of the evidence and that she was denied effective assistance of counsel. Viewing theevidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). With respect to hercontention that defense counsel was ineffective for failing to request a jury instruction onintoxication, we note that "[a]n intoxication charge is warranted if, viewing the evidence in thelight most favorable to the defendant, 'there is sufficient evidence of intoxication in the record fora reasonable person to entertain a doubt as to the element of intent on that basis' " (People v Sirico, 17 NY3d 744, 745[2011]; see People v Gaines, 83 NY2d 925, 927 [1994]). We cannot determine on thisrecord whether defendant was intoxicated to a degree such that an intoxication charge waswarranted, or whether defense counsel had a "strategic explanation for the failure. . . to request the charge" (People v Miller, 122 AD3d 1369, 1370 [2014], lv denied 25NY3d 952 [2015]). We therefore conclude that defendant's claim of ineffective assistance ofcounsel is based on matters outside the record and must be raised by way of a motion pursuant toCPL 440.10 (see generally People vGraham, 125 AD3d 1496, 1496 [2015], lv denied 26 NY3d 1008 [2015]).
We have reviewed defendant's remaining claims of ineffective assistance of counsel andconclude that they lack merit. Present—Carni, J.P., Lindley, DeJoseph, Curran andTroutman, JJ.