        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

467
KA 12-02150
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SCOTT A. NAUHEIMER, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SCOTT A. NAUHEIMER, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Victoria M.
Argento, J.), rendered November 8, 2012. The judgment convicted
defendant, upon a jury verdict, of manslaughter in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of manslaughter in the first degree (Penal Law § 125.20
[1]), defendant contends that he was deprived of effective assistance
of counsel because his attorney failed to recognize and pursue a
justification defense at trial pursuant to Penal Law § 35.20 (3),
which permits the use of deadly physical force “to prevent or
terminate the commission or attempted commission” of a burglary. We
reject that contention. There is no dispute that defendant killed the
unarmed victim, who was an acquaintance of defendant, by stabbing him
in the chest with a 10-inch butcher knife inside the home in which
defendant lived. The knife struck the victim’s heart, causing his
death. Instead of pursuing a justification defense at trial, defense
counsel argued that defendant did not intend to kill the victim, and
that the stabbing was accidental. There is no evidence in the record
that the victim was committing a burglary, and the defense pursued by
counsel was consistent with defendant’s trial testimony. Notably,
defendant did not testify that he stabbed the victim to prevent him
from committing a burglary; instead, he testified that the stabbing
was accidental. If, as defendant claimed, the stabbing was
accidental, it could not have been justifiable under Penal Law § 35.20
(3). In any event, we note that defense counsel’s strategy was not
wholly unsuccessful, inasmuch as the jury acquitted defendant of
murder in the second degree and convicted him of manslaughter in the
                                 -2-                           467
                                                         KA 12-02150

first degree as a lesser included offense.

     Although defense counsel could have argued that defendant did not
intend to kill the victim, but that, even if he did, defendant did so
to prevent or terminate a burglary, the “hazardous” nature of pursuing
inconsistent defenses is well established, “for it not only risks
confusing the jury as to the nature of the defense but may well taint
a defendant’s credibility in the eyes of the jury” (People v DeGina,
72 NY2d 768, 777; see People v Myers, 283 AD2d 258, 259, lv denied 96
NY2d 922). Under the circumstances, counsel’s failure to request a
justification charge “may have been based on a reasonable strategic
determination that such a charge would be counterproductive and
difficult to reconcile with the accidental [stabbing] claim” (People v
Poston, 95 AD3d 729, 730-731, lv denied 19 NY3d 1104; see generally
People v Benevento, 91 NY2d 708, 712-713; People v Rivera, 71 NY2d
705, 708-709). To the extent that defendant contends that defense
counsel did not understand the law as it related to justification
under Penal Law § 35.20 (3), such contention is based on matters
outside the record and is appropriately raised by way of a CPL 440.10
motion (see People v Youngs, 101 AD3d 1589, 1589, lv denied 20 NY3d
1105; People v Paduano, 84 AD3d 1730, 1731).

     We have reviewed defendant’s remaining contentions raised in his
main and pro se supplemental briefs and conclude that none warrants
reversal or modification of the judgment.




Entered:   August 17, 2016                      Frances E. Cafarell
                                                Clerk of the Court
