| People v Simpson |
| 2019 NY Slip Op 04538 [173 AD3d 1617] |
| June 7, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Breanna L. Simpson, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), fordefendant-appellant.
Breanna L. Simpson, defendant-appellant pro se.
Kristyna S. Mills, District Attorney, Watertown, for respondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedMay 29, 2015. The judgment convicted defendant, upon a jury verdict, of manslaughter in thefirst degree, criminal possession of a weapon in the third degree and assault in the firstdegree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reducing the sentence imposed on count two of the indictment to an indeterminate term of2
Memorandum: Defendant appeals from a judgment convicting her, upon a jury verdict, ofmanslaughter in the first degree (Penal Law § 125.20 [1]), assault in the first degree(§ 120.10 [1]), and criminal possession of a weapon (CPW) in the third degree(§ 265.02 [1]). The conviction arises from defendant's fatal stabbing of herfiancé in their apartment. At trial, defendant conceded that she caused the victim's death,but she argued that the stabbing occurred accidentally during an argument. Notably, defendantdid not present a justification defense, and she neither sought nor received a justificationinstruction.
We reject defendant's contentions in her main and pro se supplemental briefs that theconviction of manslaughter in the first degree and assault in the first degree is not supported bylegally sufficient evidence and that the verdict on those crimes is against the weight of theevidence with respect to the element of intent to seriously injure (see generally People v Sanchez, 32NY3d 1021, 1022-1023 [2018]; People v Bleakley, 69 NY2d 490, 495 [1987])." 'A jury is entitled to infer that a defendant intended the natural and probableconsequences of his [or her] acts' " (People v Barboni, 21 NY3d 393, 405 [2013]) and, here, the naturaland probable consequence of defendant's conduct in thrusting a knife four inches into the victim'storso is, at a minimum, serious physical injury (see People v Fitzrandolph, 162 AD3d 1537, 1537-1538 [4th Dept2018], lv denied 32 NY3d 937 [2018], denied reconsideration 32 NY3d 1111[2018]; People v Madore, 145AD3d 1440, 1442 [4th Dept 2016], lv denied 29 NY3d 1034 [2017]; People v Tigner, 51 AD3d 1045,1045 [2d Dept 2008], lv denied 13 NY3d 863 [2009], denied uponreconsideration 14 NY3d 806 [2010]). We therefore conclude that the evidence is legallysufficient to sustain the conviction of manslaughter and assault inasmuch as there is a "valid lineof reasoning and permissible inferences which could lead a rational person to the conclusionreached by the jury on the basis of the evidence at trial" (Bleakley, 69 NY2d at 495).Additionally, viewing the evidence in light of the contested element of intent as charged to thejury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that "an acquittal [on those crimes] would have beenunreasonable . . . , and thus the verdict [thereon] is not against the weight of theevidence" (People v Weezorak, 134AD3d 1590, 1590 [4th Dept 2015], lv denied 27 NY3d 970 [2016]). The recordrefutes any fair inference that the victim accidentally fell upwards onto the knife in defendant'shand, and defendant's decision following the stabbing to forgo calling 911 until after she hadcleaned up the crime scene undermines her claim of accident beyond any reasonable doubt.Given that the defense of justification was not submitted to the jury, defendant's assertion that theverdict is against the weight of the evidence because her conduct was justified lacks merit (see People v Mahon, 160 AD3d563, 563 [1st Dept 2018], lv denied 31 NY3d 1119 [2018]). In light of ourdetermination, we reject defendant's further contentions in her main and pro se supplementalbriefs that the conviction of CPW in the third degree is not supported by legally sufficientevidence and that the verdict on that count is against the weight of the evidence inasmuch as thesuccess of those contentions "depend[s] on the success of" her challenge to the manslaughter andassault convictions (People v McLaurin, 260 AD2d 944, 945 [3d Dept 1999], lvdenied 93 NY2d 1022 [1999]; seePeople v Graves, 163 AD3d 16, 19 n 1 [4th Dept 2018]).
Defendant next contends in her main and pro se supplemental briefs that her statements tothe police were involuntary and should have been suppressed because she was suffering from a"panic attack, intoxication, tiredness, and questionable mental health." Because defendant failedto raise that specific contention at the suppression hearing or in her motion papers, however, it isunpreserved for appellate review (see People v Turriago, 90 NY2d 77, 84 [1997],rearg denied 90 NY2d 936 [1997]; People v Brown, 120 AD3d 954, 955 [4th Dept 2014], lvdenied 24 NY3d 1118 [2015]; People v Carlson, 277 AD2d 158, 159 [1st Dept2000], lv denied 96 NY2d 733 [2001]), and we decline to exercise our power to review itas a matter of discretion in the interest of justice (see generally CPL 470.15 [3] [c]).
Defendant's challenge in her main brief to County Court's failure to remove juror number 10for implied bias is unpreserved because she did not seek to remove that juror either for cause orperemptorily (see People vBradford, 118 AD3d 1254, 1254-1255 [4th Dept 2014], lv denied 24 NY3d 1082[2014]). We decline to exercise our power to review the issue as a matter of discretion in theinterest of justice (see generally CPL 470.15 [6] [a]).
Contrary to defendant's further contention in her main and pro se supplemental briefs, thecourt properly admitted Molineux evidence regarding her prior assault conviction forstabbing the victim in a recent unrelated incident. That evidence was highly relevant to rebutdefendant's accident defense (see People v D'Andrea, 187 AD2d 753, 753-754 [3d Dept1992], lv denied 81 NY2d 884 [1993]), and its probity outweighed its prejudicial effect(see People v Lawrence, 4 AD3d436, 436-437 [2d Dept 2004], lv denied 2 NY3d 802 [2004]; see also People v Murray, 155 AD3d1106, 1111 [3d Dept 2017], lv denied 31 NY3d 1015 [2018]; People vWalker, 293 AD2d 411, 411-412 [1st Dept 2002], lv denied 98 NY2d 682 [2002]).People v Bradley (20 NY3d128, 130-131 [2012]), upon which defendant relies, is distinguishable because the defendantin that case was not claiming that the charged stabbing was accidental.
In her main brief, defendant raises six grounds for her contention that defense counselrendered ineffective assistance at trial. We reject each ground and conclude that defense counsel,who secured defendant's acquittal on the top count of the indictment, provided meaningfulrepresentation (see generally People vGross, 26 NY3d 689, 693-696 [2016]). We address each of defendant's six grounds inturn.
Defendant's assertion that defense counsel was ineffective for failing to craft a successfulmotion for public funds to retain a forensic pathologist lacks merit because defendant failed toestablish that a successful motion for such funds could have been made under thesecircumstances (see People vLarkins, 153 AD3d 1584, 1586 [4th Dept 2017], lv denied 30 NY3d 1061[2017]; see also Bradford, 118 AD3d at 1255-1256). We reject defendant's contentionthat defense counsel was ineffective for "failing to preserve [defendant's] losing legal sufficiencyclaims" (Graves, 163 AD3d at 23 n 5) and for failing to challenge juror number 10, who,like defendant, had a troubled family history and thus might have been sympathetic to thedefense (see People v Thompson, 21NY3d 555, 558 [2013]). We reject defendant's contention that defense counsel wasineffective for failing to call a particular doctor to present a defense based upon battered woman'ssyndrome inasmuch as that doctor's written report did not diagnose defendant with batteredwoman's syndrome; in fact, the report reached many conclusions that were damaging to thedefense, and it thus cannot be said that defense counsel had no legitimate strategic reason forfailing to call that doctor on defendant's behalf (see People v Ross, 118 AD3d 1413, 1416 [4th Dept 2014], lvdenied 24 NY3d 964 [2014]; Peoplev Muller, 57 AD3d 1113, 1114-1115 [3d Dept 2008], lv denied 12 NY3d 761[2009]). Defendant's complaint about defense counsel's performance during opening and closingarguments "merely amounts to a second-guessing of counsel's trial strategy and does not establishineffectiveness" (People v Burgos, 259 AD2d 266, 267 [1st Dept 1999], lv denied93 NY2d 923 [1999]; see People vDevictor-Lopez, 155 AD3d 1434, 1438 [3d Dept 2017]).
Defendant's remaining allegation of ineffective assistance of counsel is that defense counselfailed to "speak on [her] behalf[ ] on the Record" at sentencing. It is undisputed, however, thatdefense counsel made a sentencing argument in chambers, the content of which does not appearin the record. Thus, because that particular allegation involves matters outside the record onappeal, it must be raised in a motion pursuant to CPL 440.10 (see People v McCray, 165 AD3d 595, 597 [1st Dept 2018], lvdenied 32 NY3d 1175 [2019]).
We note, however, that the court imposed an illegal sentence of 3
Defendant's remaining contentions in her main and pro se supplemental briefs are meritless.The uniform sentence and commitment form, however, must be corrected in three respects (see generally People v Cutaia, 167AD3d 1534, 1536 [4th Dept 2018], lv denied 33 NY3d 947 [2019]). First, the formmust be amended to state that the indictment charged defendant with assault in the first degreeunder Penal Law § 120.10 (1), not section 120.10 (2). Second, the form must beamended to state that defendant was convicted of manslaughter in the first degree under section125.20 (1), not section 125.50. Finally, the form must be amended to state that defendant wasconvicted upon a jury verdict, not upon her plea of guilty. Present—Carni, J.P., Lindley,NeMoyer, Curran and Troutman, JJ.