Sessler Law PC, Geneseo (Steven D. Sessler of Counsel), for Defendant–Appellant.
Crystal Beasley, Defendant–Appellant pro se.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
PRESENT: CARNI, J.P., LINDLEY, DeJOSEPH, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM:On appeal from a judgment convicting her following a jury trial of assault in the first degree (Penal Law § 120.10[1] ) and criminal possession of a weapon in the fourth degree (§ 265.01[2] ), defendant contends that County Court violated CPL 300.10(4) and 300.40 in its instructions to the jury with respect to the order in which the jury should consider the offenses charged in the indictment and the lesser included offense. By failing to object to the court's charge, defendant failed to preserve her contention for our review (see People v. White, 191 A.D.2d 604, 604–605, 595 N.Y.S.2d 70, lv. denied 81 N.Y.2d 1082, 601 N.Y.S.2d 602, 619 N.E.2d 680 ; People v. Sampson, 145 A.D.2d 910, 910, 536 N.Y.S.2d 291, lv. denied 73 N.Y.2d 982, 540 N.Y.S.2d 1016, 538 N.E.2d 368 ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
In her pro se supplemental brief, defendant contends that the court erred in refusing to suppress her statements to the police. We reject that contention. Although defendant contends that she requested an attorney before she made oral statements to the police, the only witness to testify at the suppression hearing testified that defendant did not request an attorney until after she made the oral statements and refused to sign a written statement. The court's determination to credit that testimony should not be disturbed (see People v. Smith, 273 A.D.2d 896, 897, 709 N.Y.S.2d 793, lv. denied 95 N.Y.2d 938, 721 N.Y.S.2d 615, 744 N.E.2d 151 ; see generally People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 ). With respect to her contention that her statements were not knowingly, voluntarily or intelligently made due to her alleged intoxication, "[w]e note that defendant improperly relies on trial testimony in challenging the court's suppression ruling" (People v. Ojo, 43 A.D.3d 1367, 1368, 842 N.Y.S.2d 648, lv. denied 10 N.Y.3d 769, 854 N.Y.S.2d 331, 883 N.E.2d 1266, reconsideration denied 11 N.Y.3d 792, 866 N.Y.S.2d 618, 896 N.E.2d 104 ; see People v. Cooper, 59 A.D.3d 1052, 1054, 872 N.Y.S.2d 793, lv. denied 12 N.Y.3d 852, 881 N.Y.S.2d 664, 909 N.E.2d 587 ). There was no evidence at the suppression hearing that, at the time defendant spoke to the police, she " ‘was intoxicated to the degree of mania, or of being unable to understand the meaning of [her] statements' " (People v. Schompert, 19 N.Y.2d 300, 305, 279 N.Y.S.2d 515, 226 N.E.2d 305, cert. denied 389 U.S. 874, 88 S.Ct. 164, 19 L.Ed.2d 157 ; see People v. Lake, 45 A.D.3d 1409, 1410, 845 N.Y.S.2d 649, lv. denied 10 N.Y.3d 767, 854 N.Y.S.2d 329, 883 N.E.2d 1264 ).
Defendant further contends in her pro se supplemental brief that the court erred in admitting in evidence recordings of 911 calls made by her on the night of the crimes. Even assuming, arguendo, that the court improperly admitted those recordings in evidence, we conclude that any such error is harmless inasmuch as the proof of defendant's guilt is overwhelming, and there is no significant probability that the jury would have acquitted defendant had that evidence not been introduced (see People v. Spencer, 96 A.D.3d 1552, 1553, 946 N.Y.S.2d 753, lv. denied 19 N.Y.3d 1029, 953 N.Y.S.2d 562, 978 N.E.2d 114, reconsideration denied 20 N.Y.3d 989, 958 N.Y.S.2d 704, 982 N.E.2d 624 ; see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).
Finally, defendant contends in her pro se supplemental brief that the verdict is against the weight of the evidence and that she was denied effective assistance of counsel. Viewing the evidence in light of the elements of the crimes 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 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). With respect We have reviewed defendant's remaining claims of ineffective assistance of counsel and conclude that they lack merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.