THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v LYDIA ANN SALCE, Appellant.
1 NYS3d 417
Lahtinen, J.
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 scream
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 1 1/2 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 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 is
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 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]).
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.