Opinion
873 KA 21-00117
12-23-2022
The PEOPLE of the State of New York, Respondent, v. Martha JONES, Defendant-Appellant.
DAVID R. MORABITO, EAST ROCHESTER, FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
DAVID R. MORABITO, EAST ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, WINSLOW, 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 manslaughter in the first degree ( Penal Law § 125.20 [1] ). The conviction arises from an incident in which defendant, following an argument with a neighbor, shot the neighbor in the right leg, damaging his femoral artery and ultimately causing his death.
To the extent that defendant preserved her contention that the conviction is not supported by legally sufficient evidence (see generally People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ), that contention lacks merit (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Moreover, 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 reject defendant's further 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 ). Although a different verdict would not have been unreasonable, it cannot be said that the jury failed to give the evidence the weight it should be accorded (see id. ; People v. Metales , 171 A.D.3d 1562, 1564, 99 N.Y.S.3d 559 [4th Dept. 2019], lv denied 33 N.Y.3d 1107, 106 N.Y.S.3d 677, 130 N.E.3d 1287 [2019] ). With respect to defendant's contention that County Court erred in denying without a hearing her motion to set aside the verdict pursuant to CPL 330.30 (1), we note, initially, that certain allegations in support of the motion concerned matters that "were outside the record and for that reason could not be considered in a CPL 330.30 (1) motion" ( People v. Wolf , 98 N.Y.2d 105, 119, 745 N.Y.S.2d 766, 772 N.E.2d 1124 [2002] ; see People v. Lewis-Bush , 204 A.D.3d 1424, 1427, 166 N.Y.S.3d 783 [4th Dept. 2022], lv denied 38 N.Y.3d 1072, 171 N.Y.S.3d 451, 191 N.E.3d 403 [2022] ; see generally People v. Harris , 1 A.D.3d 881, 882, 767 N.Y.S.2d 725 [4th Dept. 2003], lv denied 2 N.Y.3d 740, 778 N.Y.S.2d 466, 810 N.E.2d 919 [2004] ). To the extent that the motion was based upon matters appearing in the record, we conclude that the court did not err in denying the motion without a hearing (see People v. Decapua , 151 A.D.3d 1746, 1747, 57 N.Y.S.3d 299 [4th Dept. 2017], lv denied 29 N.Y.3d 1125, 64 N.Y.S.3d 675, 86 N.E.3d 567 [2017] ).
Defendant's contention that she was denied the right to confront a witness who invoked his Fifth Amendment right against self-incrimination when questioned on cross-examination about a pending criminal charge is unpreserved (see People v. Wright , 38 A.D.3d 1232, 1233, 834 N.Y.S.2d 908 [4th Dept. 2007], lv denied 9 N.Y.3d 853, 840 N.Y.S.2d 780, 872 N.E.2d 893 [2007], reconsideration denied 9 N.Y.3d 884, 842 N.Y.S.2d 796, 874 N.E.2d 763 [2007] ). In any event, that contention lacks merit (see People v. Arroyo , 46 N.Y.2d 928, 930, 415 N.Y.S.2d 205, 388 N.E.2d 342 [1979] ; People v. Dekenipp , 105 A.D.3d 1346, 1348, 964 N.Y.S.2d 792 [4th Dept. 2013], lv denied 21 N.Y.3d 1041, 972 N.Y.S.2d 538, 995 N.E.2d 854 [2013] ). Nor did the court err in limiting defendant's cross-examination of the medical examiner who performed the victim's autopsy. Contrary to defendant's contention, the court did not abuse its discretion in determining that a line of questioning regarding a medical diagnosis that the victim had received and medication that he had been prescribed in connection with that diagnosis was outside the scope of direct examination (see generally People v. Ennis , 107 A.D.3d 1617, 1619, 969 N.Y.S.2d 284 [4th Dept. 2013], lv denied 22 N.Y.3d 1040, 981 N.Y.S.2d 374, 4 N.E.3d 386 [2013], reconsideration denied 23 N.Y.3d 1036, 993 N.Y.S.2d 250, 17 N.E.3d 505 [2014] ) and based on medical records that were not admitted in evidence (see People v. Laracuente , 21 A.D.3d 1389, 1391, 801 N.Y.S.2d 676 [4th Dept. 2005], lv denied 6 N.Y.3d 777, 811 N.Y.S.2d 344, 844 N.E.2d 799 [2006] ; see also People v. Jones , 73 N.Y.2d 427, 430, 541 N.Y.S.2d 340, 539 N.E.2d 96 [1989] ).
We also reject defendant's contention that she was denied effective assistance of counsel. With respect to defendant's claim that defense counsel was ineffective for failing to argue at the Huntley hearing that defendant invoked her right to counsel during her interrogation, the People did not introduce at trial any of the statements challenged by defendant at the Huntley hearing and, thus, defendant could not have been prejudiced by defense counsel's alleged failure in that respect (see generally People v. Hobot , 84 N.Y.2d 1021, 1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102 [1995] ; People v. Lewis , 192 A.D.3d 1532, 1533, 145 N.Y.S.3d 230 [4th Dept. 2021], lv denied 37 N.Y.3d 993, 152 N.Y.S.3d 420, 174 N.E.3d 360 [2021] ). Furthermore, defense counsel was not ineffective for failing to object to certain testimony of a firearms examiner concerning the rifle and projectile that were recovered in connection with the incident. Both items were recovered from the area of the shooting, and testimony about their provenance was relevant (see generally People v. Scarola , 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728 [1988] ). Moreover, the testimony of the firearms examiner that he could not determine whether the projectile was fired from the rifle was, if anything, slightly favorable to defendant. It cannot be said that defense counsel was ineffective for failing to make an objection that had "little or no chance of success" ( People v. Stultz , 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004], rearg denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 [2004] ; see People v. Faison , 113 A.D.3d 1135, 1136, 977 N.Y.S.2d 862 [4th Dept. 2014], lv denied 23 N.Y.3d 1036, 993 N.Y.S.2d 250, 17 N.E.3d 505 [2014] ). To the extent that defendant contends that defense counsel was ineffective for failing to request that an adverse inference instruction concerning missing video evidence be given to the jury, defendant failed to establish that such evidence was destroyed by agents of the government (see CJI2d[NY] Adverse Inference—Destroyed or Lost Evidence; see generally People v. Durant , 26 N.Y.3d 341, 348-350, 23 N.Y.S.3d 98, 44 N.E.3d 173 [2015] ; People v. Handy , 20 N.Y.3d 663, 665, 669, 966 N.Y.S.2d 351, 988 N.E.2d 879 [2013] ). Although defendant further contends that defense counsel was ineffective for failing to call defendant's father as a witness, defendant failed to "demonstrate the absence of strategic or other legitimate explanations" for that alleged deficiency ( People v. Baker , 14 N.Y.3d 266, 270-271, 899 N.Y.S.2d 733, 926 N.E.2d 240 [2010] [internal quotation marks omitted]; see People v. Botting , 8 A.D.3d 1064, 1066, 778 N.Y.S.2d 824 [4th Dept. 2004], lv denied 3 N.Y.3d 671, 784 N.Y.S.2d 9, 817 N.E.2d 827 [2004] ; cf. People v. Borcyk , 184 A.D.3d 1183, 1183-1188, 125 N.Y.S.3d 517 [4th Dept. 2020] ). In addition, because the court "did not erroneously instruct the jury regarding justification, defense counsel was not ineffective for failing to object to that charge" ( People v. Ford , 114 A.D.3d 1221, 1221, 979 N.Y.S.2d 915 [4th Dept. 2014], lv denied 23 N.Y.3d 962, 988 N.Y.S.2d 569, 11 N.E.3d 719 [2014] ).
We reject defendant's contention that the sentence is unduly harsh and severe.
Finally, we have considered defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment.