                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:   January 8, 2015                 105516
                                                       106349
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

LYDIA ANN SALCE,
                    Appellant.
________________________________


Calendar Date:   November 13, 2014

Before:   Peters, P.J., Lahtinen, Garry, Rose and Egan Jr., JJ.

                             __________


     Paul J. Connolly, Delmar, for appellant.

      Karen A. Heggen, District Attorney, Ballston Spa (Michele
Schettino of counsel), for respondent.

                             __________


Lahtinen, J.

      Appeals (1) from a judgment of the County Court of Saratoga
County (Scarano, J.), rendered August 31, 2012, upon a verdict
convicting defendant of the crimes of attempted murder in the
second degree and assault in the first degree (two counts), and
(2) from an order of said court, entered October 2, 2013, which
denied defendant's motion to settle the record on appeal.

      In the early morning hours of August 11, 2011, defendant
and her husband, Michael McKee, engaged in a violent physical
altercation during which, among other things, defendant was
punched in the face and McKee was repeatedly stabbed. Markedly
different versions of events were given by defendant and McKee.
Briefly, defendant claimed that an intoxicated McKee instigated
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the altercation by beating her and holding a knife to her throat,
and that she acted in self-defense fearing he intended to kill
her. McKee, on the other hand, related that, as he arrived home
late after drinking with his biker friends, defendant stabbed him
in the back while yelling, "you're done"; he struck her in the
face with his fist in an attempt to defend himself but she kept
stabbing him about his body as he collapsed on the floor.

      Defendant was indicted for attempted murder in the second
degree, two counts of assault in the first degree and two counts
of assault in the second degree. A jury found her guilty of
attempted murder in the second degree and the two counts of
assault in the first degree. She was sentenced to concurrent
prison terms of 16 years on all three counts plus five years of
postrelease supervision. County Court denied defendant's motion
to settle the record on appeal to include McKee's employment
records. Defendant appeals from the judgment of conviction and
County Court's denial of her motion to settle the record.

      Defendant argues that the verdict was not supported by
legally sufficient evidence and was against the weight of the
evidence. In legal sufficiency review, we "determine whether
there is any valid line of reasoning and permissible inferences
which could lead a rational person to the conclusion reached by
the jury on the basis of the evidence at trial and as a matter of
law satisfy the proof and burden requirements for every element
of the crime charged" (People v Bleakley, 69 NY2d 490, 495 [1987]
[citation omitted]; see People v Danielson, 9 NY3d 342, 349
[2007]). The People elicited testimony from friends and
coworkers of defendant reflecting that she had complained
repeatedly about the deterioration of her short marriage to McKee
stemming from the amount of time that he was spending with
members of a motorcycle club known as "Prisoners of Fate," where
McKee hoped to become a member. She had locked him out of the
house and called police a week earlier. On the morning of August
10, 2011, when she arrived at work, she told a coworker that she
had made an appointment with a psychiatrist and, if she did not
speak to someone soon, she was "going to kill" McKee. That
evening, a biker friend of McKee gave him a ride home and
observed defendant run out of the house screaming obscenity-laced
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                                                 106349

comments at them and acting in a manner described as violent and
aggressive as she told McKee to leave. McKee testified that he
briefly left with his friend, but returned and entered the house
during the early morning hours of August 11, 2011. After a
verbal altercation, he reportedly turned to leave the room when
defendant stabbed him in the back screaming, "you're done." He
punched her in an effort to defend himself, but she continued to
stab him using a KA-BAR combat knife with a four to five-inch
blade. After washing her hands, defendant called 911. Emergency
responders found McKee in a large pool of blood gasping for air
with shallow breaths. He was transported to the hospital where
the emergency room doctor characterized him as in critical
condition. He had 14 cut and stab wounds, suffered bilateral
pneumothorax and remained hospitalized for a week. Photographs
of his various scars as a result of the incident were received
into evidence.

      Defendant's version of events was included in a detailed
statement that she gave to police, which was received into
evidence. According to her, McKee came home intoxicated and
threw a glass jar at her, grabbed her hair, jerked her head back
and held a knife to her throat. As he started hitting her, he
apparently dropped the knife, which she picked up as she then
began swinging wildly with both arms, apparently striking McKee
several times with the knife. Defendant further elicited medical
proof that McKee's back and chest wounds were no more than 1 to
1½ inches deep and her medical expert opined that McKee's
injuries were not life threatening. Defendant contended that, if
she had intended to kill McKee and stabbed him from behind as he
claimed, the stab wound would have been much deeper. There was
proof that shortly before the incident, defendant heard from a
friend who was concerned about her being upset earlier in the day
regarding McKee, and defendant responded by stating in a text
message to the friend that she was "fine." In her 911 call,
defendant stated that she and McKee had stabbed each other, and
at all times told police that McKee had attacked her.

      Viewing the extensive proof in the light most favorable to
the People (see People v Contes, 60 NY2d 620, 621 [1983]), there
was legally sufficient evidence to support the convictions. As
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regards the weight of the evidence, since a different verdict
would not have been unreasonable, we "must, like the trier of
fact below, 'weigh the relative probative force of conflicting
testimony and the relative strength of conflicting inferences
that may be drawn from the testimony'" (People v Bleakley, 69
NY2d at 495, quoting People ex rel. MacCracken v Miller, 291 NY
55, 62 [1943]). Conflicting proof was presented on key issues
and the verdict turned in large part on credibility
determinations. We accord deference to "the factfinder's
opportunity to view the witnesses, hear the testimony and observe
demeanor" (People v Romero, 7 NY3d 633, 644 [2006] [internal
quotation marks and citation omitted]). After weighing the proof
in the record and viewing the evidence in a neutral light, while
giving deference to the jury's difficult credibility
determinations, we are unpersuaded that the verdict was against
the weight of the evidence. Nor was it against the weight of the
evidence, as separately argued by defendant, for the jury to
reject defendant's justification defense (see People v Dale, 115
AD3d 1002, 1006 [2014]; People v Fisher, 89 AD3d 1135, 1137-1138
[2011], lv denied 18 NY3d 883 [2012]).

      Defendant argues that County Court erred in not allowing
her expert, a police officer with expertise in assaults and
knives, to testify. The admissibility of expert testimony rests
primarily within the trial court's discretion in light of the
particular facts and circumstances (see People v LeGrand, 8 NY3d
449, 455-456 [2007]; People v Cronin, 60 NY2d 430, 433 [1983]).
Significantly, here, as part of their proof, the People elicited
testimony from police indicating that they relied on the
extensive nature of McKee's wounds in believing his version and
decided to charge defendant. Defendant stated that her expert
would have testified that the nature of defendant's injuries and
McKee's wounds were not inconsistent with defensive action by
defendant. Given the sharply conflicting proof on this key
factual issue at trial and the testimony by police regarding the
issue on behalf of the People, defendant should have been
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                                                     106349

permitted to have her expert testify.1 We further note that,
despite defendant's request, County Court gave a charge on the
justification defense that was inconsistent with the holding in
People v Jones (3 NY3d 491, 494 [2004] [expressly finding error
where, as here, the trial court found it preferable "to avoid any
confusion on the part of the jury by not mentioning the duty to
retreat at all, as opposed to mentioning a general duty to
retreat and then qualifying that duty by delineating the
applicable home exception"]). The combination of errors on a
close and highly contested issue persuades us that the judgment
of conviction must be reversed and defendant granted a new trial
(see People v Hartman, 64 AD3d 1002, 1005 [2009], lv denied 13
NY3d 860 [2009]).

      The remaining issues are academic, including the separate
appeal from the order denying defendant's motion to settle the
record on appeal.

        Peters, P.J., Garry, Rose and Egan Jr., JJ., concur.


      ORDERED that the judgment is reversed, on the law, and
matter remitted to the County Court of Saratoga County for a new
trial.

      ORDERED that the appeal from the order is dismissed, as
academic.



                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court


    1
        We note that we are making no determination whether a
demonstration prepared by the expert, which was set forth on a
DVD, should have been shown to the jury since that demonstration
may be subject to other relevant objections.
