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

1097
KA 11-00015
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CYNTHIA S. GALENS, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (GARY MULDOON OF COUNSEL),
FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered November 10, 2010. 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]). We reject defendant’s contention that she was denied
effective assistance of counsel based upon her attorney’s allegedly
ineffectual and irrelevant arguments during summation. “Counsel
presented a plausible defense of lack of intent to cause serious
physical injury” (People v Russo, 4 AD3d 133, 133, lv denied 2 NY3d
806), and he effectively asserted that theory to the jury in his
summation (see People v Barrera, 69 AD3d 951, 952). The fact that
defense counsel also argued that defendant lacked intent to kill,
which is not an element of manslaughter in the first degree, did not
prejudice defendant and did not alone render the summation
ineffective.

     Nor was defense counsel ineffective in failing to object to
alleged hearsay testimony concerning out-of-court statements made by
the victim. The testimony at issue was admissible for the nonhearsay
purpose of establishing the victim’s deteriorated physical condition
at the time his statements were made (see generally People v DiFabio,
170 AD2d 1028, 1029, affd 79 NY2d 836). In any event, even assuming,
arguendo, that the testimony at issue constituted inadmissible
hearsay, the single error by defense counsel in failing to object to
its admission was not so egregious as to deprive defendant of a fair
trial (see People v Hobot, 84 NY2d 1021, 1022; People v Cosby, 82 AD3d
63, 67, lv denied 16 NY3d 857). Defense counsel’s failure to renew
the motion for a trial order of dismissal does not constitute
                                 -2-                          1097
                                                         KA 11-00015

ineffective assistance inasmuch as the evidence is legally sufficient
to support the conviction and renewal of the motion had “ ‘little or
no chance of success’ ” (People v Caban, 5 NY3d 143, 152; see People v
Holt, 93 AD3d 1304, 1305, lv denied 20 NY3d 933).

     Defendant failed to preserve for our review her further
contention that she was denied a fair trial by the prosecutor’s
improper questions on cross-examination concerning the veracity of
prosecution witnesses (see CPL 470.05 [2]; People v Washington, 89
AD3d 1516, 1516-1517, lv denied 18 NY3d 963), and we decline to
exercise our power to review that contention as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]).

     Finally, we reject defendant’s contention that she was penalized
for exercising her right to trial and that the sentence is otherwise
unduly harsh and severe. “[T]he mere fact that a sentence imposed
after trial is greater than that offered in connection with plea
negotiations is not proof that defendant was punished for asserting
[her] right to trial” (People v Dorn, 71 AD3d 1523, 1524 [internal
quotation marks omitted]), nor does that fact render the sentence
unduly harsh or severe (see People v Rawleigh, 89 AD3d 1483, 1485, lv
denied 18 NY3d 961). We note that defendant intentionally poured a
large quantity of antifreeze into the victim’s margarita mix and then,
after knowing that the victim consumed the antifreeze, defendant
failed to seek medical assistance for him despite seeing him foaming
at the mouth and struggling to breathe. Under the circumstances, the
sentence imposed by County Court, which is slightly less than the
maximum sentence permitted by law, is appropriate.




Entered:   November 8, 2013                    Frances E. Cafarell
                                               Clerk of the Court
