Opinion
819 KA 15–01505
07-06-2018
The PEOPLE of the State of New York, Respondent, v. Sherrita L. CRUMPLER, Defendant–Appellant.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Monroe County Court ( James J. Piampiano, J.), rendered August 27, 2015. The judgment convicted defendant, upon a jury verdict, of manslaughter in the first degree.
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 manslaughter in the first degree ( Penal Law § 125.20 [1 ] ), arising from an altercation during which the victim, defendant's girlfriend, sustained a fatal stab wound. Defendant contends that County Court erred in admitting in evidence statements made by a police investigator and her partner during a videotaped interrogation of defendant that was played for the jury inasmuch as such statements constituted improper opinion evidence expressing that defendant's account of an accidental stabbing was not truthful and contrary to the physical evidence. Defendant failed to preserve that contention for our review inasmuch as she did not object to the admission in evidence of those statements (see CPL 470.05[2] ; People v. Scully, 61 A.D.3d 1364, 1365, 877 N.Y.S.2d 782 [4th Dept. 2009], affd 14 N.Y.3d 861, 903 N.Y.S.2d 302, 929 N.E.2d 364 [2010] ). Defendant likewise failed to preserve for our review her contention that the court erred in failing to give a limiting instruction regarding that evidence because she did not request such an instruction (see CPL 470.05[2] ; Scully, 61 A.D.3d at 1365, 877 N.Y.S.2d 782 ). Inasmuch as defendant did not object, she also failed to preserve for our review her contention that the court improperly admitted opinion testimony in evidence when the investigator testified on two occasions that, as an interrogation technique, during the course of questioning she provided defendant with additional information learned by the police during their investigation because, in light of the physical evidence, she did not believe defendant's account (see CPL 470.05[2] ). We decline to exercise our power to review those unpreserved contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ; People v. Davis, 213 A.D.2d 665, 665, 624 N.Y.S.2d 233 [2d Dept. 1995], lv denied 86 N.Y.2d 734, 631 N.Y.S.2d 614, 655 N.E.2d 711 [1995] ).
Even assuming, arguendo, that defendant's challenge to another instance of similar testimony by the investigator is preserved for our review on the ground that the court, in response to defendant's general objection, expressly decided that the investigator was permitted to express her opinion as to the veracity of defendant's account (see CPL 470.05[2] ), we conclude that any error was harmless. That testimony was merely cumulative of similar statements admitted in evidence without objection and there is no significant probability that the jury would have acquitted defendant had the investigator not provided that testimony (see People v. Haggerty, 23 N.Y.3d 871, 876, 993 N.Y.S.2d 668, 18 N.E.3d 379 [2014] ; People v. Guay, 18 N.Y.3d 16, 24, 935 N.Y.S.2d 567, 959 N.E.2d 504 [2011] ; People v. Workman, 56 A.D.3d 1155, 1157, 868 N.Y.S.2d 430 [4th Dept. 2008], lv denied 12 N.Y.3d 789, 879 N.Y.S.2d 66, 906 N.E.2d 1100 [2009] ).
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] ). The record establishes that defense counsel chose not to challenge the admission in evidence of the statements made during the interrogation and at trial as a reasonable strategy. Indeed, defense counsel relied on those statements in order to argue that defendant provided a credible account that the stabbing was an accident that occurred when the victim introduced a knife into a quarrel, as evidenced by the fact that defendant willingly spoke to the police and, despite hours of accusations by two seasoned homicide investigators who were permitted to lie during the interrogation, defendant consistently, truthfully, and adamantly maintained that she never intended to harm the victim. Under the circumstances of this case, defense counsel could have legitimately determined that an additional limiting instruction was unnecessary in light of the standard instruction given to the jury providing that they should evaluate police testimony in the same manner as the testimony of any other witness, along with the fact that the jury was repeatedly made aware that the investigator and her partner were permitted to lie to defendant during the interrogation and had used interrogation techniques to prompt responses from her. Moreover, defense counsel's alleged shortcomings did not render him ineffective in light of the totality of his representation of defendant (see People v. Gross, 26 N.Y.3d 689, 696, 27 N.Y.S.3d 459, 47 N.E.3d 738 [2016] ). Among other things, defense counsel made appropriate motions, effectively cross-examined the People's witnesses, introduced evidence in favor of defendant, and made appropriate opening and closing statements, thereby mounting a cogent, albeit unsuccessful, defense premised upon portraying defendant as a credible and sympathetic individual who was involved in a tragic accident but was not criminally liable for the victim's death (see People v. Henderson, 27 N.Y.3d 509, 513–514, 35 N.Y.S.3d 274, 54 N.E.3d 1145 [2016] ). Thus, viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Defendant further contends that the court erred in failing to conduct an inquiry into whether a juror was asleep during the beginning portion of the interrogation videotape that was played for the jury and in failing to discharge that juror. Defendant failed to preserve that contention for our review inasmuch as she did not request that the court conduct such an inquiry and did not move to discharge the juror (see People v. Brown, 159 A.D.3d 1415, 1415–1416, 70 N.Y.S.3d 144 [4th Dept. 2018] ; People v. Armstrong, 134 A.D.3d 1401, 1401, 21 N.Y.S.3d 655 [4th Dept. 2015], lv denied 27 N.Y.3d 962, 36 N.Y.S.3d 624, 56 N.E.3d 904 [2016] ). Indeed, after defense counsel brought the matter to the court's attention, the court stated that it would pay additional attention to all jurors, defense counsel acquiesced to the suggestions of the court and the prosecutor that the jury be provided more regular breaks and be informed at the outset of the length of each segment of the videotape, and the court instructed the jury to remain attentive. We thus conclude that defendant "demonstrated a willingness to continue to accept the juror as a trier of fact" and now "cannot be heard to complain" ( People v. Quinones, 41 A.D.3d 868, 868, 840 N.Y.S.2d 804 [2d Dept. 2007], lv denied 9 N.Y.3d 1008, 850 N.Y.S.2d 396, 880 N.E.2d 882 [2007] ; see Armstrong, 134 A.D.3d at 1401, 21 N.Y.S.3d 655). We decline to exercise our power to review defendant's unpreserved contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Contrary to defendant's related contention, we conclude that she was not deprived of effective assistance of counsel by defense counsel's failure to request that the court conduct an inquiry or to move to discharge the juror (see generally Gross, 26 N.Y.3d at 696, 27 N.Y.S.3d 459, 47 N.E.3d 738 ).
Defendant correctly concedes that her contention that she was denied a fair trial by prosecutorial misconduct on summation is not preserved for our review inasmuch as she did not object to the allegedly improper remarks (see People v. Sanford, 148 A.D.3d 1580, 1583, 51 N.Y.S.3d 728 [4th Dept. 2017], lv denied 29 N.Y.3d 1133, 64 N.Y.S.3d 683, 86 N.E.3d 575 [2017] ). In any event, that contention is without merit inasmuch as the prosecutor's remarks constituted a fair response to defense counsel's summation and fair comment on the evidence (see People v. Rivera, 133 A.D.3d 1255, 1256, 18 N.Y.S.3d 813 [4th Dept. 2015], lv denied 27 N.Y.3d 1154, 39 N.Y.S.3d 388, 62 N.E.3d 128 [2016] ).
We reject defendant's further contention that the verdict is against the weight of the evidence. Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the jury did not fail to give the evidence the weight it should be accorded (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Finally, the sentence is not unduly harsh or severe.