PEOPLE v. NARY (2022)

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 murder in the second degree (Penal Law § 125.25 [1]). Contrary to defendant's contention, we conclude that the jury's rejection of the affirmative defense of extreme emotional disturbance is not against the weight of the evidence (see People v. Whittemore, 185 A.D.3d 1528, 1529, 125 N.Y.S.3d 914 [4th Dept. 2020], lv denied 36 N.Y.3d 977, 138 N.Y.S.3d 476, 162 N.E.3d 705 [2020]; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]). Among other things, the jury “was entitled to consider the conduct of defendant before and after the homicide[ ] and to reject [her] explanation for [her] conduct” (People v. Steen, 107 A.D.3d 1608, 1608, 967 N.Y.S.2d 572 [4th Dept. 2013], lv denied 22 N.Y.3d 959, 977 N.Y.S.2d 190, 999 N.E.2d 555 [2013] [internal quotation marks omitted]; see generally People v. Drake, 216 A.D.2d 873, 873, 629 N.Y.S.2d 361 [4th Dept. 1995], lv denied 87 N.Y.2d 900, 641 N.Y.S.2d 230, 663 N.E.2d 1260 [1995]).

Contrary to defendant's further contention, she was not denied effective assistance of counsel based on defense counsel's opening statement, his cross-examination of certain law enforcement witnesses regarding the defense of intoxication, his cross-examination of the victim's sister, and his determination to elicit from defendant testimony regarding post-arrest incidents while in jail. Those contentions amount to mere second-guessing of defense counsel's trial strategy and do not establish ineffectiveness (see People v. Moore, 185 A.D.3d 1544, 1545, 127 N.Y.S.3d 685 [4th Dept. 2020], lv denied 35 N.Y.3d 1096, 131 N.Y.S.3d 307, 155 N.E.3d 800 [2020]; People v. Adams, 59 A.D.3d 928, 929, 872 N.Y.S.2d 616 [4th Dept. 2009], lv denied 12 N.Y.3d 813, 881 N.Y.S.2d 21, 908 N.E.2d 929 [2009]). We likewise reject defendant's contention that defense counsel was ineffective in failing to move for a mistrial without prejudice based on testimony given by the victim's sister. Defense counsel objected to that testimony, Supreme Court struck it, and defense counsel made an unsuccessful motion for a mistrial with prejudice. Defense counsel was not ineffective for failing to move instead for a mistrial without prejudice inasmuch as that motion also would have had “little to no chance of success” (People v. Briggs, 124 A.D.3d 1320, 1321, 998 N.Y.S.2d 551 [4th Dept. 2015], lv denied 25 N.Y.3d 1198, 16 N.Y.S.3d 521, 37 N.E.3d 1164 [2015]). Defendant's contention that defense counsel was ineffective in failing to seek pretrial suppression of certain evidence as the product of a warrantless search relies on matters that have not been included in the record on appeal and thus cannot be reviewed on direct appeal (see People v. Marcial, 41 A.D.3d 1308, 1308-1309, 837 N.Y.S.2d 815 [4th Dept. 2007], lv denied 9 N.Y.3d 878, 842 N.Y.S.2d 790, 874 N.E.2d 757 [2007]; see generally People v. Lopez-Mendoza, 33 N.Y.3d 565, 573, 106 N.Y.S.3d 266, 130 N.E.3d 862 [2019]).

Finally, the sentence is not unduly harsh or severe.