Opinion
2017–08275 Ind. No. 1667/15
07-20-2022
The PEOPLE, etc., respondent, v. Christen DALE, appellant.
Patricia Pazner, New York, NY (Joshua M. Levine of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Seth M. Lieberman, and Rebecca Height of counsel), for respondent.
Patricia Pazner, New York, NY (Joshua M. Levine of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Seth M. Lieberman, and Rebecca Height of counsel), for respondent.
BETSY BARROS, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Miriam Cyrulnik, J.), rendered June 1, 2017, convicting her of manslaughter in the first degree, assault in the second degree (two counts), criminal possession of a weapon in the fourth degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress her videotaped statements to law enforcement officials.
ORDERED that the judgment is affirmed.
At a hearing to suppress statements made to law enforcement officials, the People have the burden of demonstrating, beyond a reasonable doubt, that the defendant's statements were voluntary (see People v. Anderson, 42 N.Y.2d 35, 38, 396 N.Y.S.2d 625, 364 N.E.2d 1318 ; People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 ), and that the defendant knowingly, intelligently, and voluntarily waived his or her Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 ) prior to making the statements (see People v. Johnson, 139 A.D.3d 967, 969, 34 N.Y.S.3d 62 ). "Proof of voluntariness compatible with due process depends upon the particular circumstances—‘the totality’—of each case" ( id. at 969, 34 N.Y.S.3d 62, quoting People v. Guilford, 21 N.Y.3d 205, 208, 969 N.Y.S.2d 430, 991 N.E.2d 204 [internal quotation marks omitted]; see People v. Anderson, 42 N.Y.2d at 38, 396 N.Y.S.2d 625, 364 N.E.2d 1318 ). A court must "review all of the surrounding circumstances to see whether the defendant's will has been overborne" ( People v. Mateo, 2 N.Y.3d 383, 413, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; see People v. Johnson, 139 A.D.3d at 969–970, 34 N.Y.S.3d 62 ). In this case, any error in declining to suppress the defendant's videotaped statements to law enforcement officials was harmless because the evidence of the defendant's guilt, without reference to those videotaped statements, was overwhelming and there was no reasonable possibility that such an error contributed to the convictions (see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Perkins, 184 A.D.3d 776, 779, 126 N.Y.S.3d 745 ; People v. Frey, 178 A.D.3d 1402, 1403, 112 N.Y.S.3d 672 ; People v. Johnson, 139 A.D.3d at 973, 34 N.Y.S.3d 62 ; People v. Loucks, 125 A.D.3d 890, 891, 2 N.Y.S.3d 620 ).
The defendant's contention that she was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a "mixed claim of ineffective assistance" ( People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
BARROS, J.P., CHAMBERS, MILLER and CHRISTOPHER, JJ., concur.