SESSLER LAW PC, GENESEO (STEVEN D. SESSLER OF COUNSEL), FOR
CRYSTAL BEASLEY, DEFENDANT-APPELLANT PRO SE.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J.
TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND
from a judgment of the Livingston County Court (Robert B.
Wiggins, J.), rendered June 10, 2014. The judgment convicted
defendant, upon a jury verdict, of assault in the first
degree and criminal possession of a weapon in the fourth
hereby ORDERED that the judgment so appealed from is
On appeal from a judgment convicting her following a jury
trial of assault in the first degree (Penal Law § 120.10
) and criminal possession of a weapon in the fourth degree
(§ 265.01 ), defendant contends that County Court
violated CPL 300.10 (4) and 300.40 in its instructions to the
jury with respect to the order in which the jury should
consider the offenses charged in the indictment and the
lesser included offense. By failing to object to the
court's charge, defendant failed to preserve her
contention for our review (see People v White, 191
A.D.2d 604, 604-605, lv denied 81 N.Y.2d 1082;
People v Sampson, 145 A.D.2d 910, 910, lv
denied 73 N.Y.2d 982), 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  [a]).
pro se supplemental brief, defendant contends that the court
erred in refusing to suppress her statements to the police.
We reject that contention. Although defendant contends that
she requested an attorney before she made oral statements to
the police, the only witness to testify at the suppression
hearing testified that defendant did not request an attorney
until after she made the oral statements and refused to sign
a written statement. The court's determination to credit
that testimony should not be disturbed (see People v
Smith, 273 A.D.2d 896, 897, lv denied 95 N.Y.2d
938; see generally People v Prochilo, 41 N.Y.2d 759,
761). With respect to her contention that her statements were
not knowingly, voluntarily or intelligently made due to her
alleged intoxication, "[w]e note that defendant
improperly relies on trial testimony in challenging the
court's suppression ruling" (People v Ojo,
43 A.D.3d 1367, 1368, lv denied 10 N.Y.3d 769,
reconsideration denied 11 N.Y.3d 792; see People
v Cooper, 59 A.D.3d 1052, 1054, lv denied 12
N.Y.3d 852). There was no evidence at the suppression hearing
that, at the time defendant spoke to the police, she "
was intoxicated to the degree of mania, or of being unable to
understand the meaning of [her] statements' "
(People v Schompert, 19 N.Y.2d 300, 305, cert
denied 389 U.S. 874; see People v Lake, 45
A.D.3d 1409, 1410, lv denied 10 N.Y.3d 767).
further contends in her pro se supplemental brief that the
court erred in admitting in evidence recordings of 911 calls
made by her on the night of the crimes. Even assuming,
arguendo, that the court improperly admitted those recordings
in evidence, we conclude that any such error is harmless
inasmuch as the proof of defendant's guilt is
overwhelming, and there is no significant probability that
the jury would have acquitted defendant had that evidence not
been introduced (see People v Spencer, 96 A.D.3d
1552, 1553, lv denied 19 N.Y.3d 1029,
reconsideration denied 20 N.Y.3d 989; see
generally People v Crimmins, 36 N.Y.2d 230, 241-242).
defendant contends in her pro se supplemental brief that the
verdict is against the weight of the evidence and that she
was denied effective assistance of counsel. Viewing the
evidence in light of the elements of the crimes as charged to
the jury (see People v Danielson, 9 N.Y.3d 342,
349), we conclude that the verdict is not against the weight
of the evidence (see generally People v Bleakley, 69
N.Y.2d 490, 495). With respect to her contention that defense
counsel was ineffective for failing to request a jury
instruction on intoxication, we note that "[a]n
intoxication charge is warranted if, viewing the evidence in
the light most favorable to the defendant, there is
sufficient evidence of intoxication in the record for a
reasonable person to entertain a doubt as to the element of
intent on that basis' " (People v Sirico,
17 N.Y.3d 744, 745; see People v Gaines, 83 N.Y.2d
925, 927). We cannot determine on this record whether
defendant was intoxicated to a degree such that an
intoxication charge was warranted, or whether defense counsel
had a "strategic explanation for the failure... to
request the charge" (People v Miller, 122
A.D.3d 1369, 1370, lv denied 25 N.Y.3d 952). We
therefore conclude that defendant's claim of ineffective
assistance of counsel is based on matters outside the record
and must be raised by way of a motion pursuant to CPL 440.10
(see generally People v Graham, 125 A.D.3d 1496,
1496, lv denied 26 N.Y.3d 1008).
reviewed defendant's remaining claims of ineffective
assistance of ...