Opinion
697 KA 18-00449
10-07-2022
The PEOPLE of the State of New York, Respondent, v. Ronna J. NARY, Defendant-Appellant.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, 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 upon a jury verdict of murder in the second degree ( Penal Law § 125.25 [1] ). Contrary to defendant's contention, we conclude that the jury's rejection of the affirmative defense of extreme emotional disturbance is not against the weight of the evidence (see People v. Whittemore , 185 A.D.3d 1528, 1529, 125 N.Y.S.3d 914 [4th Dept. 2020], lv denied 36 N.Y.3d 977, 138 N.Y.S.3d 476, 162 N.E.3d 705 [2020] ; see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Among other things, the jury "was entitled to consider the conduct of defendant before and after the homicide[ ] and to reject [her] explanation for [her] conduct" ( People v. Steen , 107 A.D.3d 1608, 1608, 967 N.Y.S.2d 572 [4th Dept. 2013], lv denied 22 N.Y.3d 959, 977 N.Y.S.2d 190, 999 N.E.2d 555 [2013] [internal quotation marks omitted]; see generally People v. Drake , 216 A.D.2d 873, 873, 629 N.Y.S.2d 361 [4th Dept. 1995], lv denied 87 N.Y.2d 900, 641 N.Y.S.2d 230, 663 N.E.2d 1260 [1995] ).
Contrary to defendant's further contention, she was not denied effective assistance of counsel based on defense counsel's opening statement, his cross-examination of certain law enforcement witnesses regarding the defense of intoxication, his cross-examination of the victim's sister, and his determination to elicit from defendant testimony regarding post-arrest incidents while in jail. Those contentions amount to mere second-guessing of defense counsel's trial strategy and do not establish ineffectiveness (see People v. Moore , 185 A.D.3d 1544, 1545, 127 N.Y.S.3d 685 [4th Dept. 2020], lv denied 35 N.Y.3d 1096, 131 N.Y.S.3d 307, 155 N.E.3d 800 [2020] ; People v. Adams , 59 A.D.3d 928, 929, 872 N.Y.S.2d 616 [4th Dept. 2009], lv denied 12 N.Y.3d 813, 881 N.Y.S.2d 21, 908 N.E.2d 929 [2009] ). We likewise reject defendant's contention that defense counsel was ineffective in failing to move for a mistrial without prejudice based on testimony given by the victim's sister. Defense counsel objected to that testimony, Supreme Court struck it, and defense counsel made an unsuccessful motion for a mistrial with prejudice. Defense counsel was not ineffective for failing to move instead for a mistrial without prejudice inasmuch as that motion also would have had "little to no chance of success" ( People v. Briggs , 124 A.D.3d 1320, 1321, 998 N.Y.S.2d 551 [4th Dept. 2015], lv denied 25 N.Y.3d 1198, 16 N.Y.S.3d 521, 37 N.E.3d 1164 [2015] ). Defendant's contention that defense counsel was ineffective in failing to seek pretrial suppression of certain evidence as the product of a warrantless search relies on matters that have not been included in the record on appeal and thus cannot be reviewed on direct appeal (see People v. Marcial , 41 A.D.3d 1308, 1308-1309, 837 N.Y.S.2d 815 [4th Dept. 2007], lv denied 9 N.Y.3d 878, 842 N.Y.S.2d 790, 874 N.E.2d 757 [2007] ; see generally People v. Lopez-Mendoza , 33 N.Y.3d 565, 573, 106 N.Y.S.3d 266, 130 N.E.3d 862 [2019] ).
Finally, the sentence is not unduly harsh or severe.