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

401
KA 07-02188
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DALE BRADLEY, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (GRAZINA MYERS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (ELIZABETH CLIFFORD OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Melchor E.
Castro, A.J.), rendered September 14, 2007. 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: Defendant appeals from a judgment convicting her
upon a jury verdict of manslaughter in the first degree (Penal Law §
125.20 [1]). Contrary to the contention of defendant, County Court
properly weighed the probative value of the evidence of her prior bad
acts against any prejudice to her (see generally People v Ventimiglia,
52 NY2d 350; People v Molineux, 168 NY 264). Although “the court
should have expressly recited its discretionary balancing [of those
factors] . . ., viewed in the context of the combined
[Molineux/Ventimiglia and Sandoval] hearings and defense counsel’s
opposition [to the evidence] based on its prejudicial effect, the
court’s proper exercise of its discretion is implicit” (People v
Milot, 305 AD2d 729, 731, lv denied 100 NY2d 585; see People v Meseck,
52 AD3d 948, 950; cf. People v Westerling, 48 AD3d 965, 968).
Furthermore, “ ‘any prejudice to defendant was minimized by [the
court’s] limiting instructions’ ” (People v Carson, 4 AD3d 805, 806,
lv denied 2 NY3d 797). Defendant failed to address in her brief on
appeal any other issues with respect to the Molineux/Ventimiglia
evidence, and thus she is deemed to have abandoned any contentions
with respect thereto (see generally People v Butler, 2 AD3d 1457,
1458, lv denied 3 NY3d 637; People v Jansen, 145 AD2d 870, 871, lv
denied 73 NY2d 923).

     We agree with defendant, however, that the court erred in
refusing to instruct the jury with respect to posttraumatic stress
disorder insofar as it was relevant to the defense of justification.
                                 -2-                              401
                                                            KA 07-02188

Prior to trial, defendant served a notice pursuant to CPL 250.10
indicating that she intended to introduce evidence that she suffered
from battered woman syndrome. At trial, defendant’s psychiatric
expert testified regarding that syndrome and posttraumatic stress
disorder, as did the People’s expert in rebuttal. After the close of
proof, the prosecutor requested that the court not instruct the jury
on posttraumatic stress disorder insofar as it was relevant to the
defense of justification, based solely on the lack of specificity in
the CPL 250.10 notice. As the Court of Appeals recently noted, that
“statutory notice provision is grounded on principles of fairness and
is intended ‘to prevent disadvantage to the prosecution as a result of
surprise’ . . . [I]t ‘was designed to allow the prosecution an
opportunity to acquire relevant information from any source—not merely
from an independent examination of the defendant—to counter the
defense’ ” (People v Diaz, 15 NY3d 40, 46). Thus, inasmuch as the
People had sufficient notice to prepare a response to the defense of
justification, the court erred in refusing to give the instruction on
that ground. Contrary to defendant’s further contention, however,
reversal is not required. Defense counsel was permitted to introduce
relevant evidence and argue to the jury regarding both battered woman
syndrome and posttraumatic stress disorder and, “[b]ecause there was
overwhelming evidence disproving the justification defense and no
reasonable possibility that the verdict would have been different had
the charge been correctly given, the error in the . . . court’s
justification charge [is] harmless” (People v Petty, 7 NY3d 277, 286;
see generally People v Crimmins, 36 NY2d 230, 241-242).

     Finally, the sentence is not unduly harsh or severe.




Entered:   April 1, 2011                        Patricia L. Morgan
                                                Clerk of the Court
