Opinion
04-02-2015
The PEOPLE of the State of New York, Respondent, v. Daishaile GALARZA, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Marisa K. Cabrera of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (T. Charles Won of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Marisa K. Cabrera of counsel), for appellant.Robert T. Johnson, District Attorney, Bronx (T. Charles Won of counsel), for respondent.
Opinion Judgment, Supreme Court, Bronx County (Ann M. Donnelly, J.), rendered April 23, 2011, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree, and sentencing her to an aggregate term of 25 years to life, unanimously affirmed.
Defendant's legal sufficiency claim is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Contrary to defendant's arguments, the finding that defendant possessed the intent to kill was reasonably based on “the totality of defendant's conduct” (People v. Skian, 184 A.D.2d 330, 331, 585 N.Y.S.2d 206 [1st Dept.1992], lv. denied 80 N.Y.2d 977, 591 N.Y.S.2d 146, 605 N.E.2d 882 [1992] ), including her various threatening statements to the victim over the course of the party where the shooting occurred, her repeated demands for another partygoer to give her his handgun, and her conduct in struggling to break free from a friend who unsuccessfully attempted to hold her back from reaching the weapon. Moreover, after defendant grabbed the weapon, she immediately pointed it at the victim and fired a fatal shot to his groin. The inference of homicidal intent is not negated by the facts that defendant fired only one shot before fleeing, or that she did not hit a more vital area such as the head or heart (see People v. Blue, 55 A.D.3d 391, 391, 865 N.Y.S.2d 97 [1st Dept.2008], lv. denied 11 N.Y.3d 922, 874 N.Y.S.2d 8, 902 N.E.2d 442 [2009] ).
Since the court submitted manslaughter in the first degree as a lesser included offense of murder in the second degree, defendant's murder conviction “foreclose[s her] challenge to the court's refusal to charge the remote lesser included offense[ ]” of second-degree manslaughter (People v. Boettcher, 69 N.Y.2d 174, 180, 513 N.Y.S.2d 83, 505 N.E.2d 594 [1987] ; see also People v. Johnson, 87 N.Y.2d 357, 361, 639 N.Y.S.2d 776, 662 N.E.2d 1066 [1996] ). In any event, the court properly declined the request (see People v. Cesario, 71 A.D.3d 587, 900 N.Y.S.2d 4 [1st Dept.2010], lv. denied 15 N.Y.3d 803, 908 N.Y.S.2d 162, 934 N.E.2d 896 [2010], cert. denied 562 U.S. 1073, 131 S.Ct. 670, 178 L.Ed.2d 499 [2010] ).
Since defendant did not raise the specific arguments raised on appeal, she failed to preserve her challenges to the procedures by which the court adjudicated her Batson application (see People v. James, 99 N.Y.2d 264, 272, 755 N.Y.S.2d 43, 784 N.E.2d 1152 [2002] ), and the court's resolution of an issue involving sworn jurors (see People v. Hicks, 6 N.Y.3d 737, 739, 810 N.Y.S.2d 396, 843 N.E.2d 1136 [2005] ). We have considered and rejected defendant's arguments on the issue of preservation of these claims, and we decline to review the claims in the interest of justice. As an alternative holding, we reject them on the merits.
Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they generally involve matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).
We perceive no basis for reducing the sentence.
MAZZARELLI, J.P., SWEENY, DeGRASSE, FEINMAN, GISCHE, JJ., concur.