PEOPLE v. SANDERS (2007)

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered August 19, 2005, upon a verdict convicting defendant of the crime of murder in the second degree.

Defendant was indicted for murder in the second degree after admitting to stabbing her boyfriend 26 times, causing his death.   County Court denied her suppression motion and issued a Sandoval ruling severely limiting the prosecutor's inquiry into her prior bad acts, and a jury trial ensued.   Ultimately, her defense of justification was rejected by the jury, she was convicted as charged, and she now appeals.

 Initially, we find no merit in defendant's contention that she was denied a meaningful defense due to the ineffective assistance of her trial counsel.   The record indicates that defense counsel changed strategies at the time of trial because that is when the report of the defense's psychiatric expert was received and it evidently did not support the defense of mental disease or defect.   Justification then became counsel's primary defense, and emotional distress was mentioned in his opening statement only to explain defendant's mental state at the time of the killing.   In his closing statement, knowing that the defense of extreme emotional disturbance would be available even if the elements of murder in the second degree were found to be proven (see Penal Law § 125.25[1][a] ), counsel urged the justification defense, but also argued that, if the jury rejected it, there was at least extreme emotional disturbance.   Thus, we cannot agree that defense counsel asserted mutually exclusive defense theories or otherwise acted unreasonably in presenting both defenses (see People v. Cutting, 210 A.D.2d 791, 792, 621 N.Y.S.2d 149 [1994], lv. denied 85 N.Y.2d 971, 629 N.Y.S.2d 731, 653 N.E.2d 627 [1995] ).

 Nor can we agree that counsel's failure to oppose the People's objection to the offer of expert testimony regarding battered women's syndrome constitutes ineffective assistance under the circumstances here (see People v. Thomas, 33 A.D.3d 1053, 1055, 822 N.Y.S.2d 805 [2006];  People v. Singh, 16 A.D.3d 974, 977, 792 N.Y.S.2d 241 [2005], lv. denied 5 N.Y.3d 769, 801 N.Y.S.2d 263, 834 N.E.2d 1273 [2005] ).   Given defendant's admissions, counsel pursued a realistic strategy to convince the jury that she had acted in self-defense, and losing tactics do not constitute ineffective assistance of counsel (see People v. Jackson, 25 A.D.3d 1012, 1015, 808 N.Y.S.2d 822 [2006], lv. denied 6 N.Y.3d 849, 816 N.Y.S.2d 755, 849 N.E.2d 978 [2006] ).

 Defendant next contends that County Court erred in permitting the People to inquire as to her illegal use of drugs when she testified as to her claim of battered women's syndrome and her mental condition.   Inasmuch as defendant did not object to this questioning and County Court had no occasion to rule on its propriety, the issue is unpreserved for our review (see People v. Carter, 31 A.D.3d 1056, 1057, 818 N.Y.S.2d 854 [2006], lv. denied 7 N.Y.3d 901, 826 N.Y.S.2d 610, 860 N.E.2d 72 [2006] ).   However, were we to review it, we would find defendant's contention to be without merit because her testimony opened the door to the inquiry (see People v. Fardan, 82 N.Y.2d 638, 646, 607 N.Y.S.2d 220, 628 N.E.2d 41 [1993];  People v. Brown, 252 A.D.2d 598, 600, 675 N.Y.S.2d 186 [1998], lv. denied 92 N.Y.2d 923, 680 N.Y.S.2d 464, 703 N.E.2d 276 [1998];  People v. Schwerbel, 224 A.D.2d 830, 831, 638 N.Y.S.2d 198 [1996] ).

 Finally, as to defendant's claim that the trial transcript is inadequate to review the People's use of peremptory challenges during jury selection, this issue too is unpreserved for review (see People v. Richins, 29 A.D.3d 1170, 1172, 814 N.Y.S.2d 816 [2006], lv. denied 7 N.Y.3d 817, 822 N.Y.S.2d 492, 855 N.E.2d 808 [2006] ).   In any event, were we to do so, we would find the record to be sufficient for our review and conclude that defendant fails to cite a “ ‘sound factual basis' ” (People v. Pryor, 14 A.D.3d 723, 725, 787 N.Y.S.2d 503 [2005], lv. denied 6 N.Y.3d 779, 811 N.Y.S.2d 346, 844 N.E.2d 801 [2006], quoting People v. Childress, 81 N.Y.2d 263, 268, 598 N.Y.S.2d 146, 614 N.E.2d 709 [1993] ) for her vague allegation that discriminatory use of challenges could have occurred.   Accordingly, we find no grounds to disturb defendant's conviction.

ORDERED that the judgment is affirmed.

ROSE, J.

MERCURE, J.P., PETERS, CARPINELLO and LAHTINEN, JJ., concur.