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

1098
KA 10-01949
PRESENT: FAHEY, J.P., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LINDA CAMPANELLA, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered August 11, 2010. The judgment convicted
defendant, upon a jury verdict, of murder in the second 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 murder in the second degree (Penal Law § 125.25
[1] [intentional murder]). Viewing the evidence in the light most
favorable to the People, we conclude that the evidence is legally
sufficient to establish defendant’s intent to kill the victim (see
generally People v Bleakley, 69 NY2d 490, 495). Moreover, viewing the
evidence in light of the element of intent as charged to the jury (see
People v Danielson, 9 NY3d 342, 349), we conclude that the verdict
with respect to that element is not against the weight of the evidence
(see generally Bleakley, 69 NY2d at 495).

     Contrary to defendant’s contention, Supreme Court did not err in
permitting the Medical Examiner to testify regarding the victim’s
cause of death, i.e., that the victim died from complications
resulting from a stab wound to the abdomen (see People v Odell, 26
AD3d 527, 529, lv denied 7 NY3d 760; People v Klosin, 281 AD2d 951,
951-952, lv denied 96 NY2d 864; see also People v McCart, 157 AD2d
194, 197, lv denied 76 NY2d 861). “It is axiomatic that expert
testimony is admissible where, as here, the conclusions drawn from the
facts depend upon professional knowledge not within the ken of the
ordinary juror” (Odell, 26 AD3d at 529). Indeed, expert medical
testimony generally is required to establish that the defendant’s
conduct was a cause of death (see People v Eberle, 265 AD2d 881, 882;
McCart, 157 AD2d at 197).
                                 -2-                          1098
                                                         KA 10-01949

     Defendant’s further contention that the court erred in allowing
the Medical Examiner to testify that the victim’s death was a homicide
is not preserved for our review (see CPL 470.05 [2]). In any event,
although we note that the People correctly concede that “it was error
to allow the [Medical Examiner] to . . . opine that the death was a
homicide, since ‘[s]uch characterization improperly invaded the
province of the jury’ ” (People v Heath, 49 AD3d 970, 973, lv denied
10 NY3d 959; see People v Lluveres, 15 AD3d 848, 849, lv denied 5 NY3d
807), we conclude that the error is harmless. The Medical Examiner
stated that he was not making a legal determination by characterizing
the victim’s death as a homicide and added that he used the term
“homicide” only to indicate that the victim died at the hands of
another person (see Odell, 26 AD3d at 529; cf. Lluveres, 15 AD3d at
849). Viewing the evidence, the law and the circumstances of this
case, in totality and as of the time of the representation, we also
reject defendant’s contention that she was denied effective assistance
of counsel (see generally People v Baldi, 54 NY2d 137, 147).

     We further conclude that the court properly denied defendant’s
challenges for cause to two prospective jurors. “It is well settled
that a prospective juror whose statements raise a serious doubt
regarding the ability to be impartial must be excused unless the
[prospective] juror states unequivocally on the record that he or she
can be fair and impartial” (People v Baker, 89 AD3d 1431, 1431, lv
denied 18 NY3d 856 [internal quotation marks omitted]; see People v
Chambers, 97 NY2d 417, 419). We conclude that the first prospective
juror at issue, who owned a security business, never expressed any
doubt concerning his ability to be fair and impartial (see People v
Odum, 67 AD3d 1465, 1465, lv denied 14 NY3d 804, 15 NY3d 755, cert
denied ___ US ___, 131 S Ct 326; People v Smith, 48 AD3d 489, 489, lv
denied 10 NY3d 870). We reach the same conclusion with respect to the
second prospective juror at issue, who acknowledged having a friend
and an acquaintance in law enforcement (see People v Pickren, 284 AD2d
727, 727, lv denied 96 NY2d 923; see also People v Colon, 71 NY2d 410,
418, cert denied 487 US 1239). In any event, “[e]ven assuming,
arguendo, that the initial statements of the [second] prospective
juror raised a serious doubt regarding his ability to be impartial, we
conclude that [he] ultimately stated unequivocally that he could be
fair” (Baker, 89 AD3d at 1432 [internal quotation marks omitted]; see
Chambers, 97 NY2d at 419). Finally, we conclude that the sentence is
not unduly harsh or severe.




Entered:   November 9, 2012                    Frances E. Cafarell
                                               Clerk of the Court
