Opinion
No. 461 KA 23-00085
07-26-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. NICOLE M. LACEY, DEFENDANT-APPELLANT.
CAMBARERI & BRENNECK, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (MORGAN R. MAYER OF COUNSEL), FOR RESPONDENT.
CAMBARERI & BRENNECK, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (MORGAN R. MAYER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, OGDEN, GREENWOOD, AND NOWAK, JJ.
Appeal from a judgment of the Jefferson County Court (David A. Renzi, J.), rendered July 27, 2022. The judgment convicted defendant upon a jury verdict of manslaughter in the first degree, assault in the first degree and criminal possession of a weapon in the fourth degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In this prosecution arising from allegations that defendant caused the death of her boyfriend (victim)-who was the father of one of her children-by running him over with her car, defendant appeals from a judgment convicting her upon a jury verdict of manslaughter in the first degree (Penal Law § 125.20 [1]), assault in the first degree (§ 120.10 [1]), and criminal possession of a weapon in the fourth degree (§ 265.01 [2]). We affirm.
Contrary to defendant's contention, County Court properly denied that part of her omnibus motion seeking to dismiss the indictment on the ground that the integrity of the grand jury proceeding was impaired by the submission of certain inadmissible evidence. "Typically, the submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment" (People v Huston, 88 N.Y.2d 400, 409 [1996]) and, here, we conclude that the remaining evidence was legally sufficient to support the indictment (see People v Bullock, 213 A.D.3d 1351, 1352 [4th Dept 2023], lv denied 40 N.Y.3d 933 [2023]; People v Peck, 96 A.D.3d 1468, 1469 [4th Dept 2012], lv denied 21 N.Y.3d 1008 [2013]; People v Tuszynski, 71 A.D.3d 1407, 1408 [4th Dept 2010], lv denied 15 N.Y.3d 810 [2010]).
Defendant also contends that the court erred in discharging a juror for cause without conducting an adequate inquiry of the juror, who the record establishes had been selected but not yet sworn as a trial juror (cf. CPL 270.15 [2]), and that the court employed an incorrect standard in discharging the juror. Defendant failed to preserve that contention for our review (see CPL 470.05 [2]; People v Browne, 144 A.D.3d 834, 835 [2d Dept 2016]; People v Sanchez, 123 A.D.3d 624, 624 [1st Dept 2014], lv denied 25 N.Y.3d 1207 [2015]; see generally People v Hopkins, 76 N.Y.2d 872, 873 [1990]). After the selected but unsworn juror disclosed that he and his wife had some personal connection with defendant and the victim, defense counsel initially expressed a desire to speak further with the juror, but defense counsel thereafter elicited confirmation from the prosecutor that she had a problem with the juror serving as a trial juror and, accepting the court's characterization that both the defense and the prosecution had expressed discomfort with the juror serving as a trial juror, defense counsel thanked the court after it discharged the juror for cause and never objected to the discharge of the juror on any ground (see Browne, 144 A.D.3d at 835; Sanchez, 123 A.D.3d at 624; People v Norrell, 105 A.D.3d 546, 546 [1st Dept 2013], lv denied 21 N.Y.3d 1007 [2013]). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; Sanchez, 123 A.D.3d at 624; Norrell, 105 A.D.3d at 546).
Defendant further contends that she was denied a fair trial because a forensic pathologist was permitted to testify that, in her opinion, the victim's death was a "homicide." Although, as the People correctly concede, the court erred in allowing the forensic pathologist to opine that the death was a homicide inasmuch as such characterization improperly invaded the province of the jury (see People v Campanella, 100 A.D.3d 1420, 1421 [4th Dept 2012], lv denied 20 N.Y.3d 1060 [2013]), we conclude that the error is harmless (see People v Szatanek, 169 A.D.3d 1448, 1450 [4th Dept 2019], lv denied 33 N.Y.3d 981 [2019]; Campanella, 100 A.D.3d at 1421; see generally People v Crimmins, 36 N.Y.2d 230, 241-242 [1975]). Defendant's remaining challenges to the forensic pathologist's testimony are not preserved for our review because she failed to object to the testimony on the specific grounds she now raises on appeal (see CPL 470.05 [2]; People v Bridges, 185 A.D.3d 1426, 1428 [4th Dept 2020], lv denied 35 N.Y.3d 1111 [2020]). In any event, contrary to defendant's contention, "[i]t is not error for a court to admit in evidence expert testimony on cause of death that is based, in part, on nonmedical evidence" where, as here, "the opinion is also based, in part, 'on professional or medical knowledge'" (People v Neulander, 221 A.D.3d 1412, 1414 [4th Dept 2023], lv denied 41 N.Y.3d 984 [2024]; see People v Ramsaran, 154 A.D.3d 1051, 1055 [3d Dept 2017], lv denied 30 N.Y.3d 1063 [2017]). We further conclude that, to the extent that the forensic pathologist's spontaneous comment on the thoroughness of the police investigation constituted improper bolstering testimony, any error in admitting that testimony is harmless (see People v Jones, 142 A.D.3d 1383, 1384-1385 [4th Dept 2016], lv denied 28 N.Y.3d 1073 [2016]; People v Gibson, 137 A.D.3d 1657, 1658 [4th Dept 2016], lv denied 27 N.Y.3d 1151 [2016]; see generally Crimmins, 36 N.Y.2d at 241-242).
Next, even assuming, arguendo, that defendant fully preserved for our review her challenges to the testimony of a police investigator, we conclude that any error in admitting that testimony is likewise harmless (see People v Box, 181 A.D.3d 1238, 1242 [4th Dept 2020], lv denied 35 N.Y.3d 1025 [2020], cert denied - U.S. -, 141 S.Ct. 1099 [2021]; see generally People v Inoa, 25 N.Y.3d 466, 472, 475-477 [2015]; Crimmins, 36 N.Y.2d at 241-242). Here, "the [circumstantial] proof of defendant's commission of the charged crimes was overwhelming and we perceive no significant probability that, but for the error, the verdict, as it bore upon defendant, would have been less adverse" (Inoa, 25 N.Y.3d at 472; see generally People v Johnson, 133 A.D.3d 1309, 1311 [4th Dept 2015], lv denied 27 N.Y.3d 1000 [2016]).
As defendant correctly concedes, her further contention that she was deprived of a fair trial due to alleged instances of prosecutorial misconduct "is unpreserved for our review inasmuch as defendant did not object to any of [those] alleged instances of misconduct" (People v Pendergraph, 150 A.D.3d 1703, 1703 [4th Dept 2017], lv denied 29 N.Y.3d 1132 [2017]; see CPL 470.05 [2]; People v Watts, 218 A.D.3d 1171, 1174 [4th Dept 2023], lv denied 40 N.Y.3d 1013 [2023]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; Watts, 218 A.D.3d at 1174).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 N.Y.3d 342, 349 [2007]), we conclude that, contrary to defendant's contention, the verdict is not against the weight of the evidence, particularly in light of the overwhelming circumstantial evidence presented by the People (see People v Isaac, 195 A.D.3d 1410, 1410 [4th Dept 2021], lv denied 37 N.Y.3d 992 [2021]; People v Wise, 46 A.D.3d 1397, 1399-1400 [4th Dept 2007], lv denied 10 N.Y.3d 872 [2008]; see generally People v Bleakley, 69 N.Y.2d 490, 495 [1987]).
Finally, the sentence is not unduly harsh or severe.