Opinion
962 KA 15-01321
12-23-2021
The PEOPLE of the State of New York, Respondent, v. Jennifer DEFIO, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the facts by reversing that part convicting defendant of assault in the second degree under count 11 of the indictment and dismissing that count of the indictment, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of aggravated vehicular assault ( Penal Law § 120.04-a [4] ), three counts of assault in the second degree (§ 120.05 [4]), and one count of a traffic infraction, all arising from an incident that began when she drove her car into a construction barrier in the City of Syracuse. After she came to a halt, defendant initially appeared to be shaking and unresponsive, but when a Syracuse Police Officer knocked on the window of the driver's side door, defendant immediately became alert, looked at the officer, engaged the accelerator, drove through the barrier, and fled, driving at over 80 miles per hour on city streets until she struck another vehicle, injuring the occupants of the vehicle and a pedestrian.
Contrary to defendant's contention, Supreme Court properly declined to suppress the statements she made to a Syracuse Police Officer while seated in the back of a patrol car, before she was advised of her Miranda rights. No warnings were required because those "statements were not the product of police interrogation inasmuch as the officer asked defendant only preliminary questions that ‘were investigatory and not accusatory’ " ( People v. Hailey , 153 A.D.3d 1639, 1641, 61 N.Y.S.3d 755 [4th Dept. 2017], lv denied 30 N.Y.3d 1060, 71 N.Y.S.3d 10, 94 N.E.3d 492 [2017] ; see People v. Towsley , 85 A.D.3d 1549, 1551, 924 N.Y.S.2d 708 [4th Dept. 2011], lv denied 17 N.Y.3d 905, 933 N.Y.S.2d 660, 957 N.E.2d 1164 [2011] ; People v. Hayes , 60 A.D.3d 1097, 1100-1101, 874 N.Y.S.2d 324 [3d Dept. 2009], lv denied 12 N.Y.3d 925, 884 N.Y.S.2d 707, 912 N.E.2d 1088 [2009] ). Contrary to defendant's further contention, the officers had probable cause to arrest her (see generally People v. Vandover , 20 N.Y.3d 235, 238-239, 958 N.Y.S.2d 83, 981 N.E.2d 784 [2012] ; People v. Russ , 183 A.D.3d 1238, 1238, 121 N.Y.S.3d 708 [4th Dept. 2020], lv denied 35 N.Y.3d 1070, 129 N.Y.S.3d 399, 152 N.E.3d 1201 [2020] ), and we conclude that her consent to having her blood drawn was voluntary (see generally People v. Mojica , 62 A.D.3d 100, 114, 874 N.Y.S.2d 195 [2d Dept. 2009], lv denied 12 N.Y.3d 856, 881 N.Y.S.2d 668, 909 N.E.2d 591 [2009] ). The court thus properly declined to suppress the results of the tests performed on her blood (see People v. Badia , 130 A.D.3d 744, 745, 14 N.Y.S.3d 73 [2d Dept. 2015], lv denied 26 N.Y.3d 1085, 23 N.Y.S.3d 642, 44 N.E.3d 940 [2015] ; see generally People v. Centerbar , 80 A.D.3d 1008, 1010-1011, 914 N.Y.S.2d 784 [3d Dept. 2011] ).
Defendant next contends that she is entitled to reversal based on several alleged discovery violations. Defendant failed to preserve for our review her contentions concerning the majority of those allegations inasmuch as she did not object on the specific grounds raised on appeal (see People v. Delatorres , 34 A.D.3d 1343, 1344, 825 N.Y.S.2d 614 [4th Dept. 2006], lv denied 8 N.Y.3d 921, 834 N.Y.S.2d 511, 866 N.E.2d 457 [2007] ). In any event, with respect to both defendant's preserved and unpreserved allegations of discovery violations, we cannot conclude that "the conduct has caused such substantial prejudice to defendant ... that ... she has been denied due process of law" ( People v. Davis , 52 A.D.3d 1205, 1206, 859 N.Y.S.2d 804 [4th Dept. 2008] ; see generally People v. Kessler , 122 A.D.3d 1402, 1404, 996 N.Y.S.2d 836 [4th Dept. 2014], lv denied 25 N.Y.3d 990, 10 N.Y.S.3d 533, 32 N.E.3d 970 [2015] ).
We reject defendant's contention that she was deprived of 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] ). With respect to defendant's claim that defense counsel was ineffective because he failed to call an expert witness to establish that her symptoms were caused by seizures rather than impairment by drugs, defendant did not demonstrate that such expert "testimony was available, that it would have assisted the jury in its determination or that [s]he was prejudiced by its absence" ( People v. West , 118 A.D.3d 1450, 1451, 988 N.Y.S.2d 792 [4th Dept. 2014], lv denied 24 N.Y.3d 1048, 998 N.Y.S.2d 318, 23 N.E.3d 161 [2014] [internal quotation marks omitted]; see People v. Finch , 180 A.D.3d 1362, 1363, 117 N.Y.S.3d 415 [4th Dept. 2020], lv denied 35 N.Y.3d 993, 125 N.Y.S.3d 627, 149 N.E.3d 388 [2020] ; People v. Richards , 177 A.D.3d 1280, 1281, 112 N.Y.S.3d 394 [4th Dept. 2019], lv denied 35 N.Y.3d 994, 125 N.Y.S.3d 626, 149 N.E.3d 387 [2020] ). Contrary to defendant's further contention, "defense counsel's failure to call [a] certain witness[ ] was a matter of strategy and also did not constitute ineffective assistance of counsel" ( People v. Gonzalez , 62 A.D.3d 1263, 1265, 878 N.Y.S.2d 534 [4th Dept. 2009], lv denied 12 N.Y.3d 925, 884 N.Y.S.2d 706, 912 N.E.2d 1087 [2009] ; see e.g. People v. Magee , 182 A.D.3d 996, 998, 123 N.Y.S.3d 310 [4th Dept. 2020], lv denied 35 N.Y.3d 1028, 126 N.Y.S.3d 44, 149 N.E.3d 882 [2020] ). Insofar as defendant's ineffective assistance challenge involves matters outside the record on appeal, it must be raised by way of a CPL article 440 motion (see People v. Timmons , 151 A.D.3d 1682, 1684, 56 N.Y.S.3d 729 [4th Dept. 2017], lv denied 30 N.Y.3d 984, 67 N.Y.S.3d 586, 89 N.E.3d 1266 [2017] ). We have reviewed the remaining claims of ineffective assistance of counsel, and we conclude that, because "the evidence, the law, and the circumstances [in this] case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement [has] been met" ( People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Contrary to defendant's further contention, we conclude that the evidence is legally sufficient to support the conviction (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Nevertheless, viewing the evidence in light of the elements of assault in the second degree 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 agree with defendant that the verdict finding her guilty of that crime under count 11 of the indictment is contrary to the weight of the evidence because the People failed to prove beyond a reasonable doubt that defendant caused serious physical injury to the victim. Although the victim testified that he sustained a skull fracture (see People v. Rollins , 118 A.D.2d 949, 951, 499 N.Y.S.2d 817 [3d Dept. 1986] ; see generally People v. Ford , 114 A.D.3d 1273, 1274, 980 N.Y.S.2d 219 [4th Dept. 2014], lv denied 23 N.Y.3d 962, 988 N.Y.S.2d 569, 11 N.E.3d 719 [2014] ), the People also introduced expert medical testimony establishing that he did not have a skull fracture. In addition, although the victim testified to ongoing memory issues, there is evidence in the record establishing that he had several other concussions that could also have caused those issues, including one that occurred when he was struck by a metal bat only a few months after this incident. Consequently, we cannot conclude that "the jury was justified in finding ... defendant guilty beyond a reasonable doubt" ( Danielson , 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; cf. People v. Mosley , 59 A.D.3d 961, 962, 872 N.Y.S.2d 825 [4th Dept. 2009], lv denied 12 N.Y.3d 918, 884 N.Y.S.2d 699, 912 N.E.2d 1080 [2009], reconsideration denied 13 N.Y.3d 861, 891 N.Y.S.2d 695, 920 N.E.2d 100 [2009] ). We therefore modify the judgment by reversing that part convicting defendant of assault in the second degree under count 11 of the indictment and dismissing that count of the indictment. Viewing the evidence with respect to the remaining counts of the indictment in light of the elements of those counts as charged to the jury (see Danielson , 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict on those counts is not against the weight of the evidence (see generally id. at 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Finally, the sentence is not unduly harsh or severe.