Opinion
2013-11-8
The PEOPLE of the State of New York, Respondent, v. Cynthia S. GALENS, Defendant–Appellant.
Leanne Lapp, Public Defender, Canandaigua (Gary Muldoon of Counsel), for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua, for Respondent.
Leanne Lapp, Public Defender, Canandaigua (Gary Muldoon of Counsel), for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua, for Respondent.
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting her upon a jury verdict of manslaughter in the first degree (Penal Law § 125.20[1] ). We reject defendant's contention that she was denied effective assistance of counsel based upon her attorney's allegedly ineffectual and irrelevant arguments during summation. “Counsel presented a plausible defense of lack of intent to cause serious physical injury” ( People v. Russo, 4 A.D.3d 133, 133, 771 N.Y.S.2d 345,lv. denied2 N.Y.3d 806, 781 N.Y.S.2d 305, 814 N.E.2d 477), and he effectively asserted that theory to the jury in his summation ( see People v. Barrera, 69 A.D.3d 951, 952, 894 N.Y.S.2d 471). The fact that defense counsel also argued that defendant lacked intent to kill, which is not an element of manslaughter in the first degree, did not prejudice defendant and did not alone render the summation ineffective.
Nor was defense counsel ineffective in failing to object to alleged hearsay testimony concerning out-of-court statements made by the victim. The testimony at issue was admissible for the nonhearsay purpose of establishing the victim's deteriorated physical condition at the time his statements were made ( see generally People v. DiFabio, 170 A.D.2d 1028, 1029, 566 N.Y.S.2d 172,affd.79 N.Y.2d 836, 580 N.Y.S.2d 182, 588 N.E.2d 80). In any event, even assuming, arguendo, that the testimony at issue constituted inadmissible hearsay, the single error by defense counsel in failing to object to its admission was not so egregious as to deprive defendant of a fair trial ( see People v. Hobot, 84 N.Y.2d 1021, 1022, 622 N.Y.S.2d 675, 646 N.E.2d 1102;People v. Cosby, 82 A.D.3d 63, 67, 916 N.Y.S.2d 689,lv. denied16 N.Y.3d 857, 923 N.Y.S.2d 419, 947 N.E.2d 1198). Defense counsel's failure to renew the motion for a trial order of dismissal does not constitute ineffective assistance inasmuch as the evidence is legally sufficient to support the conviction and renewal of the motion had “ ‘little or no chance of success' ” ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;see People v. Holt, 93 A.D.3d 1304, 1305, 940 N.Y.S.2d 500,lv. denied20 N.Y.3d 933, 957 N.Y.S.2d 692, 981 N.E.2d 289).
Defendant failed to preserve for our review her further contention that she was denied a fair trial by the prosecutor's improper questions on cross-examination concerning the veracity of prosecution witnesses ( seeCPL 470.05[2]; People v. Washington, 89 A.D.3d 1516, 1516–1517, 933 N.Y.S.2d 499,lv. denied18 N.Y.3d 963, 944 N.Y.S.2d 492, 967 N.E.2d 717), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ).
Finally, we reject defendant's contention that she was penalized for exercising her right to trial and that the sentence is otherwise unduly harsh and severe. “[T]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting [her] right to trial” ( People v. Dorn, 71 A.D.3d 1523, 1524, 895 N.Y.S.2d 906 [internal quotation marks omitted] ), nor does that fact render the sentence unduly harsh or severe ( see People v. Rawleigh, 89 A.D.3d 1483, 1485, 932 N.Y.S.2d 660,lv. denied18 N.Y.3d 961, 944 N.Y.S.2d 490, 967 N.E.2d 715). We note that defendant intentionally poured a large quantity of antifreeze into the victim's margarita mix and then, after knowing that the victim consumed the antifreeze, defendant failed to seek medical assistance for him despite seeing him foaming at the mouth and struggling to breathe. Under the circumstances, the sentence imposed by County Court, which is slightly less than the maximum sentence permitted by law, is appropriate.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.