Opinion
77 KA 15–01278
06-07-2019
The PEOPLE of the State of New York, Respondent, v. Breanna L. SIMPSON, Defendant–Appellant.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT. BREANNA L. SIMPSON, DEFENDANT–APPELLANT PRO SE. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN, FOR RESPONDENT.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT.
BREANNA L. SIMPSON, DEFENDANT–APPELLANT PRO SE.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN, FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reducing the sentence imposed on count two of the indictment to an indeterminate term of 2? to 7 years' imprisonment and as modified the judgment is affirmed.
Memorandum: 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 (CPW) in the third degree (§ 265.02[1] ). The conviction arises from defendant's fatal stabbing of her fiance´ in their apartment. At trial, defendant conceded that she caused the victim's death, but she argued that the stabbing occurred accidentally during an argument. Notably, defendant did not present a justification defense, and she neither sought nor received a justification instruction. We reject defendant's contentions in her main and pro se supplemental briefs that the conviction of manslaughter in the first degree and assault in the first degree is not supported by legally sufficient evidence and that the verdict on those crimes is against the weight of the evidence with respect to the element of intent to seriously injure (see generally People v. Sanchez, 32 N.Y.3d 1021, 1022–1023, 112 N.E.3d 312 [2018] ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). " ‘A jury is entitled to infer that a defendant intended the natural and probable consequences of his [or her] acts’ " ( People v. Barboni, 21 N.Y.3d 393, 405, 971 N.Y.S.2d 729, 994 N.E.2d 820 [2013] ) and, here, the natural and probable consequence of defendant's conduct in thrusting a knife four inches into the victim's torso is, at a minimum, serious physical injury (see People v. Fitzrandolph, 162 A.D.3d 1537, 1537–1538, 78 N.Y.S.3d 556 [4th Dept. 2018], lv denied 32 N.Y.3d 937, 84 N.Y.S.3d 863, 109 N.E.3d 1163 [2018], reconsideration denied 32 N.Y.3d 1111, 91 N.Y.S.3d 362, 115 N.E.3d 634 [2018] ; People v. Madore, 145 A.D.3d 1440, 1442, 46 N.Y.S.3d 300 [4th Dept. 2016], lv denied 29 N.Y.3d 1034, 62 N.Y.S.3d 303, 84 N.E.3d 975 [2017] ; People v. Tigner, 51 A.D.3d 1045, 1045, 860 N.Y.S.2d 542 [2d Dept. 2008], lv denied 13 N.Y.3d 863, 891 N.Y.S.2d 697, 920 N.E.2d 102 [2009], reconsideration denied 14 N.Y.3d 806, 899 N.Y.S.2d 140, 925 N.E.2d 944 [2010] ). We therefore conclude that the evidence is legally sufficient to sustain the conviction of manslaughter and assault inasmuch as there is a "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial" ( Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Additionally, viewing the evidence in light of the contested element of intent 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 conclude that "an acquittal [on those crimes] would have been unreasonable ..., and thus the verdict [thereon] is not against the weight of the evidence" ( People v. Weezorak, 134 A.D.3d 1590, 1590, 21 N.Y.S.3d 923 [4th Dept. 2015], lv denied 27 N.Y.3d 970, 36 N.Y.S.3d 631, 56 N.E.3d 911 [2016] ). The record refutes any fair inference that the victim accidentally fell upwards onto the knife in defendant's hand, and defendant's decision following the stabbing to forgo calling 911 until after she had cleaned up the crime scene undermines her claim of accident beyond any reasonable doubt. Given that the defense of justification was not submitted to the jury, defendant's assertion that the verdict is against the weight of the evidence because her conduct was justified lacks merit (see People v. Mahon, 160 A.D.3d 563, 563, 74 N.Y.S.3d 554 [1st Dept. 2018], lv. denied 31 N.Y.3d 1119, 81 N.Y.S.3d 379, 106 N.E.3d 762 [2018] ). In light of our determination, we reject defendant's further contentions in her main and pro se supplemental briefs that the conviction of CPW in the third degree is not supported by legally sufficient evidence and that the verdict on that count is against the weight of the evidence inasmuch as the success of those contentions "depends on the success of" her challenge to the manslaughter and assault convictions ( People v. McLaurin, 260 A.D.2d 944, 945, 690 N.Y.S.2d 289 [3d Dept. 1999], lv denied 93 N.Y.2d 1022, 697 N.Y.S.2d 581, 719 N.E.2d 942 [1999] ; see People v. Graves, 163 A.D.3d 16, 19 n. 1, 78 N.Y.S.3d 613 [4th Dept. 2018] ).
Defendant next contends in her main and pro se supplemental briefs that her statements to the police were involuntary and should have been suppressed because she was suffering from a "panic attack, intoxication, tiredness, and questionable mental health." Because defendant failed to raise that specific contention at the suppression hearing or in her motion papers, however, it is unpreserved for appellate review (see People v. Turriago, 90 N.Y.2d 77, 84, 659 N.Y.S.2d 183, 681 N.E.2d 350 [1997], rearg. denied 90 N.Y.2d 936, 664 N.Y.S.2d 274, 686 N.E.2d 1369 [1997] ; People v. Brown, 120 A.D.3d 954, 955, 990 N.Y.S.2d 755 [4th Dept. 2014], lv denied 24 N.Y.3d 1118, 3 N.Y.S.3d 760, 27 N.E.3d 474 [2015] ; People v. Carlson, 277 A.D.2d 158, 159, 717 N.Y.S.2d 57 [1st Dept. 2000], lv denied 96 N.Y.2d 733, 722 N.Y.S.2d 799, 745 N.E.2d 1022 [2001] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see generally CPL 470.15[3][c] ).
Defendant's challenge in her main brief to County Court's failure to remove juror number 10 for implied bias is unpreserved because she did not seek to remove that juror either for cause or peremptorily (see People v. Bradford, 118 A.D.3d 1254, 1254–1255, 987 N.Y.S.2d 727 [4th Dept. 2014], lv denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014] ). We decline to exercise our power to review the issue as a matter of discretion in the interest of justice (see generally CPL 470.15[6][a] ).
Contrary to defendant's further contention in her main and pro se supplemental briefs, the court properly admitted Molineux evidence regarding her prior assault conviction for stabbing the victim in a recent unrelated incident. That evidence was highly relevant to rebut defendant's accident defense (see People v. D'Andrea, 187 A.D.2d 753, 753–754, 589 N.Y.S.2d 638 [3d Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ), and its probity outweighed its prejudicial effect (see People v. Lawrence, 4 A.D.3d 436, 436–437, 771 N.Y.S.2d 362 [2d Dept. 2004], lv denied 2 N.Y.3d 802, 781 N.Y.S.2d 301, 814 N.E.2d 473 [2004] ; see also People v. Murray, 155 A.D.3d 1106, 1111, 64 N.Y.S.3d 158 [3d Dept. 2017], lv. denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ; People v. Walker, 293 A.D.2d 411, 411–412, 740 N.Y.S.2d 852 [1st Dept. 2002], lv. denied 98 N.Y.2d 682, 746 N.Y.S.2d 472, 774 N.E.2d 237 [2002] ). People v. Bradley , 20 N.Y.3d 128, 130–131, 958 N.Y.S.2d 650, 982 N.E.2d 570 (2012), upon which defendant relies, is distinguishable because the defendant in that case was not claiming that the charged stabbing was accidental.
In her main brief, defendant raises six grounds for her contention that defense counsel rendered ineffective assistance at trial. We reject each ground and conclude that defense counsel, who secured defendant's acquittal on the top count of the indictment, provided meaningful representation (see generally People v. Gross, 26 N.Y.3d 689, 693–696, 27 N.Y.S.3d 459, 47 N.E.3d 738 [2016] ). We address each of defendant's six grounds in turn. Defendant's assertion that defense counsel was ineffective for failing to craft a successful motion for public funds to retain a forensic pathologist lacks merit because defendant failed to establish that a successful motion for such funds could have been made under these circumstances (see People v. Larkins, 153 A.D.3d 1584, 1586, 62 N.Y.S.3d 648 [4th Dept. 2017], lv denied 30 N.Y.3d 1061, 71 N.Y.S.3d 11, 94 N.E.3d 493 [2017] ; see also Bradford, 118 A.D.3d at 1255–1256, 987 N.Y.S.2d 727 ). We reject defendant's contention that defense counsel was ineffective for "failing to preserve [defendant's] losing legal sufficiency claims" ( Graves, 163 A.D.3d at 23 n. 5, 78 N.Y.S.3d 613 ) and for failing to challenge juror number 10, who, like defendant, had a troubled family history and thus might have been sympathetic to the defense (see People v. Thompson, 21 N.Y.3d 555, 558, 975 N.Y.S.2d 380, 997 N.E.2d 1232 [2013] ). We reject defendant's contention that defense counsel was ineffective for failing to call a particular doctor to present a defense based upon battered woman's syndrome inasmuch as that doctor's written report did not diagnose defendant with battered woman's syndrome; in fact, the report reached many conclusions that were damaging to the defense, and it thus cannot be said that defense counsel had no legitimate strategic reason for failing to call that doctor on defendant's behalf (see People v. Ross, 118 A.D.3d 1413, 1416, 988 N.Y.S.2d 756 [4th Dept. 2014], lv denied 24 N.Y.3d 964, 996 N.Y.S.2d 223, 20 N.E.3d 1003 [2014] ; People v. Muller, 57 A.D.3d 1113, 1114–1115, 869 N.Y.S.2d 270 [3d Dept. 2008], lv denied 12 N.Y.3d 761, 876 N.Y.S.2d 712, 904 N.E.2d 849 [2009] ). Defendant's complaint about defense counsel's performance during opening and closing arguments "merely amounts to a second-guessing of counsel's trial strategy and does not establish ineffectiveness" ( People v. Burgos, 259 A.D.2d 266, 267, 687 N.Y.S.2d 83 [1st Dept. 1999], lv. denied 93 N.Y.2d 923, 693 N.Y.S.2d 506, 715 N.E.2d 509 [1999] ; see People v. Devictor–Lopez, 155 A.D.3d 1434, 1438, 66 N.Y.S.3d 346 [3d Dept. 2017] ).
Defendant's remaining allegation of ineffective assistance of counsel is that defense counsel failed to "speak on [her] behalf[ ] on the Record" at sentencing. It is undisputed, however, that defense counsel made a sentencing argument in chambers, the content of which does not appear in the record. Thus, because that particular allegation involves matters outside the record on appeal, it must be raised in a motion pursuant to CPL 440.10 (see People v. McCray, 165 A.D.3d 595, 597, 86 N.Y.S.3d 68 [1st Dept. 2018], lv denied 32 N.Y.3d 1175, 97 N.Y.S.3d 590, 121 N.E.3d 218 [2019] ).
We note, however, that the court imposed an illegal sentence of 3½ to 7 years' imprisonment on defendant's conviction for CPW in the third degree. Because defendant was not sentenced as a predicate felon, the minimum period of her indeterminate sentence on this conviction must be one-third of the maximum period, not one-half as fixed by the court (see Penal Law § 70.00[3][b] ). "Although the issue is not raised by either party, we cannot allow an illegal sentence to stand" ( People v. Considine, 167 A.D.3d 1554, 1555, 90 N.Y.S.3d 792 [4th Dept. 2018] ). We therefore modify the judgment by reducing defendant's sentence on that count to an indeterminate term of 2? to 7 years' imprisonment (see People v. Mc Farland, 306 A.D.2d 931, 931, 762 N.Y.S.2d 324 [4th Dept. 2003] ; see generally People v. LaSalle, 95 N.Y.2d 827, 829, 712 N.Y.S.2d 437, 734 N.E.2d 749 [2000] ). As so modified, the sentence is not unduly harsh or severe.
Defendant's remaining contentions in her main and pro se supplemental briefs are meritless. The uniform sentence and commitment form, however, must be corrected in three respects (see generally People v. Cutaia, 167 A.D.3d 1534, 1536, 90 N.Y.S.3d 444 [4th Dept. 2018], lv denied 33 N.Y.3d 947, 100 N.Y.S.3d 195, 123 N.E.3d 854 [2019] ). First, the form must be amended to state that the indictment charged defendant with assault in the first degree under Penal Law § 120.10(1), not section 120.10(2). Second, the form must be amended to state that defendant was convicted of manslaughter in the first degree under section 125.20(1), not section 125.50. Finally, the form must be amended to state that defendant was convicted upon a jury verdict, not upon her plea of guilty.