Stillman & Friedman, P.C., New York, N.Y. (Nathaniel Z. Marmur and Nathaniel I. Kolodny of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary S. Fidel and Donna Aldea of counsel), for respondent.
Dorchen A. Leidholdt, New York, N.Y., and Nancy K.D. Lemon, Berkeley, California, pro hac vice, for amici curiae Sanctuary for Families, Center for Battered Women's Services, National Clearinghouse for the Defense of Battered Women, Women's Law Project, Domestic Violence Program at Albany Law School Clinic and Justice Center, Pace Women's Justice Center, Connect, Domestic Violence Report, Legal Project, Washington State Coalition Against Domestic Violence, National Network to End Domestic Violence, SUNY Buffalo School of Law Women, Children, and Social Justice Clinic, Minnesota Indian Women's Resource Center, New York Legal Assistance Group, New York State Coalition Against Domestic Violence, and Legal Aid Society.
MARK C. DILLON, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, L. PRISCILLA HALL, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered November 10, 2011, convicting her of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50(5).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15; People v Danielson, 9 N.Y.3d 342, 348-349), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 N.Y.3d 383, 410, cert denied 542 U.S. 946; People v Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record, we are satisfied that the jury's verdict of guilt was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633).
The defendant's contention that the Supreme Court erred by precluding her from presenting expert psychiatric testimony with respect to her mental condition is academic in light of her acquittal of the count of murder in the second degree (see People v Pons, 68 N.Y.2d 264, 265; People v Almodovar, 62 N.Y.2d 126, 130; People v Marquez, 82 A.D.3d 1123, 1124; People v Thomas, 232 A.D.2d 667).
The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80). We acknowledge that the record demonstrates that the defendant, a first-time felony offender, had been the victim of domestic violence, and that such domestic violence was a factor in the defendant's commission of criminal possession of a weapon in the second degree, the crime for which she was convicted. Consequently, we agree with our dissenting colleague that Penal Law § 60.12 is applicable and could have been utilized by the Supreme Court to sentence the defendant to an indeterminate term of imprisonment. However, under the particular circumstances of this case, it was not an improvident exercise of discretion for the court to decline to sentence the defendant pursuant to that statute. Moreover, the sentence imposed, a determinate term of imprisonment of five years, was appropriate and not excessive. While the court accurately noted that the sentence would have limited deterrent and rehabilitative impact on this particular defendant, the court's aim in imposing the sentence was, in large part, to deter others from engaging in similar misconduct. Indeed, the court stated at sentencing that "[s]ociety certainly must be concerned with self-help, violent behavior that is not sanctioned by law." Since the court viewed general deterrence as an overriding sentencing principle, we cannot say that the emphasis was erroneous or that the interest of justice calls for a reduction in the defendant's sentence (see People v Rodriguez, 161 A.D.2d 737, 738).
The defendant's remaining contentions are without merit.
DILLON, J.P., CHAMBERS and HALL, JJ., concur.
BALKIN, J., concurs in part, and dissents in part, and votes to modify the judgment, as a matter of discretion in the interest of justice, by reducing the sentence imposed to an indeterminate term of imprisonment of 2¼ to 4½ years, and otherwise affirm the judgment, with the following memorandum:
I agree that the defendant's conviction should stand, but I would reduce the sentence as a matter of discretion in the interest of justice. Therefore, I respectfully dissent from so much of the order as affirms the sentence.
In "Jenna's Law" (L 1998, ch 1) the Legislature lengthened the authorized prison terms for first-time violent felons by, among other things, requiring the imposition of determinate sentences. In the very first section of the new law, however, the Legislature provided an exception, contained in a new Penal Law § 60.12, which allows a court to sentence a first-time violent felony offender to an indeterminate term of imprisonment if the ...