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

1157
KA 12-00437
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRYAN M. ASHLINE, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Steuben County Court (Joseph W.
Latham, J.), rendered December 21, 2011. The judgment convicted
defendant, upon a jury verdict, of murder in the first degree (two
counts), murder in the second degree (two counts), aggravated criminal
contempt and criminal possession of a weapon in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing those parts convicting
defendant of two counts of murder in the second degree and dismissing
counts three and four of the indictment and as modified the judgment
is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, two counts of murder in the first
degree (Penal Law § 125.27 [1] [a] [viii]; [b]) and two counts of
murder in the second degree (§ 125.25 [1]). The charges arose from
the brutal killing of defendant’s ex-girlfriend and her infant son on
Father’s Day. Defendant admitted to the killings but asserted the
affirmative defense of extreme emotional disturbance with respect to
both murder in the first degree (§ 125.27 [2] [a]) and murder in the
second degree (§ 125.25 [1] [a]).

     We note at the outset that, as the People correctly concede,
those parts of the judgment convicting defendant of murder in the
second degree must be reversed and those counts dismissed because they
are inclusory concurrent counts of the two counts of murder in the
first degree (see CPL 300.40 [3] [b]; People v Howard, 92 AD3d 1219,
1220, lv denied 19 NY3d 864, reconsideration denied 19 NY3d 997). We
therefore modify the judgment accordingly.

     We reject defendant’s contention that his statements to the
police were not voluntarily made because he suffered from sleep
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                                                         KA 12-00437

deprivation during the questioning and also was in pain due to his
hand injury. The record of the suppression hearing establishes that
defendant was asleep when he was apprehended and that he slept during
the almost hour-long transport between police stations, and, indeed,
he did not testify at the suppression hearing that he was tired at the
time of questioning (see People v Pearce, 283 AD2d 1007, 1007, lv
denied 96 NY2d 923; People v Orso, 270 AD2d 947, 947, lv denied 95
NY2d 856). The record also establishes that defendant was alert and
made coherent decisions about the topics of discussion with the
police. Furthermore, with respect to defendant’s hand injury, “[t]he
record establishes that defendant did not complain of or show outward
signs that he was in pain while being questioned” (Pearce, 283 AD2d at
1007). Based on the totality of the circumstances, we conclude that
defendant’s statements to the police were voluntarily made (see People
v Young, 303 AD2d 952, 953; Pearce, 283 AD2d at 1007; see generally
People v Anderson, 42 NY2d 35, 38-39).

     Defendant further contends that he was improperly restrained in
handcuffs during the suppression hearing, which hindered his ability
to participate meaningfully in his defense, and that the court
committed reversible error in requiring him to wear a stun belt during
the trial without setting forth a reason for the use of the stun belt.
With respect to being restrained in handcuffs, the court denied
defense counsel’s request to remove defendant’s handcuffs during the
suppression hearing in accordance with the County Sheriff’s policy.
Although the court’s response was error, inasmuch as a court “must
state a particularized reason for [restraining defendant] on the
record” even at a bench trial (People v Best, 19 NY3d 739, 743), we
nevertheless conclude that the error is harmless beyond a reasonable
doubt because the error “did not contribute to the [court’s decision]”
on the suppression issue (People v Clyde, 18 NY3d 145, 153, cert
denied ___ US ___, 132 S Ct 1921 [internal quotation marks omitted];
see People v Campbell, 106 AD3d 1507, 1509, lv denied 21 NY3d 1002).
With respect to the stun belt, we note that the requirement to wear
the stun belt is not a mode of proceedings error and, therefore, such
an error may be waived (see generally People v Schrock, 108 AD3d 1221,
1224-1225, lv denied 22 NY3d 998). Here, defendant waived his
contention because he agreed to wear the stun belt, despite the court
having informed defendant that he was entitled to a hearing to make
findings as to the necessity of the belt (see generally id.; People v
Worth, 233 AD2d 939, 940).

     We also reject defendant’s contention that the court abused its
discretion by admitting in evidence certain photographs of the victims
and crime scene (see generally People v Pobliner, 32 NY2d 356, 369-
370, rearg denied 33 NY2d 657, cert denied 416 US 905). Here, the
photographs were relevant to show defendant’s intent to kill, to
corroborate the Medical Examiner’s testimony concerning the cause of
death, and to aid the jury in determining whether the victims’ wounds
and crime scene provided evidence that defendant acted under the
influence of extreme emotional disturbance (see People v Stevens, 76
NY2d 833, 836; People v Camacho, 70 AD3d 1393, 1394, lv denied 14 NY3d
886; People v Jones, 43 AD3d 1296, 1297-1298, lv denied 9 NY3d 991,
                                 -3-                          1157
                                                         KA 12-00437

reconsideration denied 10 NY3d 812; People v Giles, 20 AD3d 863, 864,
lv denied 5 NY3d 806).

     We further reject defendant’s contention that the evidence is
legally insufficient to support the conviction of murder in the first
degree inasmuch as he established the defense of extreme emotional
disturbance by a preponderance of the evidence. As defendant
correctly concedes, he failed to preserve that contention for our
review because he made only a general motion for a trial order of
dismissal (see People v Gray, 86 NY2d 10, 19). In any event,
defendant’s contention lacks merit (see generally People v Bleakley,
69 NY2d 490, 495). The defense of extreme emotional disturbance
requires evidence “ ‘of a subjective element, that defendant acted
under an extreme emotional disturbance, and an objective element, that
there was a reasonable explanation or excuse for the emotional
disturbance’ ” (People v Diaz, 15 NY3d 40, 44-45; see People v Roche,
98 NY2d 70, 75-76; People v Domblewski, 238 AD2d 916, 916, lv denied
90 NY2d 904). Generally, a defendant receives the benefit of the
defense “only when the trier of fact, after considering a broad range
of mitigating circumstances, believes that such leniency is justified”
(People v Casassa, 49 NY2d 668, 681, cert denied 449 US 842; see
Domblewski, 238 AD2d at 916). Here, the jury was entitled to consider
defendant’s conduct immediately before and after the killings (see
People v Jarvis, 60 AD3d 1478, 1479, lv denied 12 NY3d 916; People v
McGrady, 45 AD3d 1395, 1395, lv denied 10 NY3d 813; Domblewski, 238
AD2d at 916), from which the jury could reasonably conclude that
defendant failed to meet his burden of establishing the defense (see
generally Bleakley, 69 NY2d at 495). Furthermore, viewing the
evidence in the light of the elements of the crimes as charged to the
jury (see People v Danielson, 9 NY3d 342, 349), we conclude that the
verdict is not against the weight of the evidence (see People v
Sorrentino, 12 AD3d 1197, 1197, lv denied 4 NY3d 748; People v Burse,
234 AD2d 950, 950, lv denied 89 NY2d 1033; see generally Bleakley, 69
NY2d at 495).

     Defendant contends that he was deprived of effective assistance
of counsel based on defense counsel’s failure to object to the use of
the stun belt and the failure to make a specific rather than a general
motion for a trial order of dismissal. We reject that contention.
Inasmuch as defendant waived his contention concerning the stun belt
by consenting to wear it, defense counsel was not ineffective for
failing to object to the use of the stun belt (see generally Schrock,
108 AD3d at 1225). Further, “[t]he failure to provide a specific
basis for a trial order of dismissal that had no chance of success
does not constitute ineffective assistance of counsel” (People v
Woodard, 96 AD3d 1619, 1621, lv denied 19 NY3d 1030; see generally
People v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702).

     Finally, defendant’s sentence is not unduly harsh or severe.


Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
