Opinion
1152 KA 17–01341
02-07-2020
The PEOPLE of the State of New York, Respondent, v. Leslie A. FINCH, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT–APPELLANT. LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT–APPELLANT.
LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her following a nonjury trial of manslaughter in the first degree ( Penal Law § 125.20[4] ), manslaughter in the second degree (§ 125.15[1] ), reckless assault of a child (§ 120.02[1] ), assault in the second degree (§ 120.05[8] ), and endangering the welfare of a child (§ 260.10[1] ), arising from the death of her one-year-old daughter.
With respect to defendant's contention that she did not validly waive the right to a jury trial, " ‘[d]efendant did not challenge the adequacy of the allocution related to that waiver ... [and thus] failed to preserve for our review [her] challenge to the sufficiency of [County] [C]ourt's inquiry’ " ( People v. McCoy, 174 A.D.3d 1379, 1381, 106 N.Y.S.3d 447 [4th Dept. 2019], lv denied 34 N.Y.3d 982, 113 N.Y.S.3d 653, 137 N.E.3d 23 [2019] ; see People v. Adger, 156 A.D.3d 1458, 1458, 66 N.Y.S.3d 584 [4th Dept. 2017], lv denied 31 N.Y.3d 980, 77 N.Y.S.3d 658, 102 N.E.3d 435 [2018], reconsideration denied 31 N.Y.3d 1114, 81 N.Y.S.3d 374, 106 N.E.3d 757 [2018], cert denied ––– U.S. ––––, 139 S.Ct. 1563, 203 L.Ed.2d 728 [2019] ).
Contrary to defendant's further contention, the conviction is supported by legally sufficient evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; People v. McLain, 80 A.D.3d 992, 993–996, 915 N.Y.S.2d 362 [3d Dept. 2011], lv denied 16 N.Y.3d 897, 926 N.Y.S.2d 32, 949 N.E.2d 980 [2011] ). Moreover, viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the verdict is against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Defendant also contends that the allegedly improper admission of evidence of prior bad acts denied her a fair trial. Defendant failed to preserve for our review her contention with respect to the admission of evidence of certain prior bad acts inasmuch as defendant did not object to the evidence on that ground (see CPL 470.05[2] ; People v. Woods, 72 A.D.3d 1563, 1564, 899 N.Y.S.2d 763 [4th Dept. 2010], lv denied 15 N.Y.3d 811, 908 N.Y.S.2d 171, 934 N.E.2d 905 [2010] ). To the extent that defendant's contention is preserved, we conclude that the court properly admitted the evidence at issue (see generally People v. Henson, 33 N.Y.2d 63, 72, 349 N.Y.S.2d 657, 304 N.E.2d 358 [1973] ; People v. Molineux, 168 N.Y. 264, 293–294, 61 N.E. 286 [1901] ). Even assuming, arguendo, that the court erred in admitting that evidence, we conclude that any error is harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ). We reject defendant's contention that she was denied effective assistance of counsel inasmuch as she failed to " ‘demonstrate the absence of strategic or other legitimate explanations’ for counsel's alleged shortcomings" ( People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). With respect to defendant's claim that defense counsel was ineffective for failing to produce an expert witness at trial to rebut the expert testimony introduced by the People, defendant has not established that " ‘such expert testimony was available, that it would have assisted the [court] in its determination or that [she] was prejudiced by its absence’ " ( People v. Johnson, 125 A.D.3d 1419, 1421, 3 N.Y.S.3d 225 [4th Dept. 2015], lv denied 26 N.Y.3d 1089, 23 N.Y.S.3d 646, 44 N.E.3d 944 [2015] ). Contrary to defendant's further claim, she was not denied effective assistance of counsel based on defense counsel's failure to conduct an adequate cross-examination of certain prosecution witnesses. "[S]peculation that a more vigorous cross-examination might have [undermined the credibility of a witness] does not establish ineffectiveness of counsel" ( People v. Lozada, 164 A.D.3d 1626, 1628, 84 N.Y.S.3d 630 [4th Dept. 2018], lv denied 32 N.Y.3d 1174, 97 N.Y.S.3d 588, 121 N.E.3d 215 [2019] ). Finally, the sentence is not unduly harsh or severe.