People v. Shutter

• Decision Date: 08 April 2010
• Citation: 899 N.Y.S.2d 389,72 A.D.3d 1211
• Parties: The PEOPLE of the State of New York, Respondent, v. Lisa SHUTTER, Appellant.
• Court: New York Supreme Court — Appellate Division

899 N.Y.S.2d 389
72 A.D.3d 1211

The PEOPLE of the State of New York, Respondent,
v.
Lisa SHUTTER, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

April 8, 2010.

899 N.Y.S.2d 390

Paul J. Connolly, Delmar, for appellant.

P. David Soares, District Attorney, Albany (Steven M. Sharp), for respondent.

Before: CARDONA, P.J., LAHTINEN, MALONE JR., STEIN and GARRY, JJ.

MALONE JR., J.

72 A.D.3d 1212

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered April 23, 2009, upon a verdict convicting defendant of the crime of making a punishable false written statement (four counts).

Due to four allegedly false statements defendant made in a written complaint to police, one in which she claimed to have been inappropriately touched by a police officer during a traffic stop, defendant was charged in an indictment with four counts of making a punishable false written statement. Following a jury trial, she was convicted as charged and thereafter sentenced to three consecutive jail terms of 60 days each (counts 1, 2 and 3), as well as a consecutive term of one year (count 4). Defendant appeals.

Initially, we are not persuaded that County Court erred by denying defendant's motion to disqualify the prosecutor, who had interviewed defendant before trial as a putative victim after defendant lodged her complaint. Although defendant contends that the interview created a confidential relationship between defendant and the prosecutor, defendant did not " 'demonstrate actual prejudice or so substantial a risk thereof as could not be ignored' " such that the disqualification of the prosecutor was necessary ( People v. Herr, 86 N.Y.2d 638, 641, 635 N.Y.S.2d 159, 658 N.E.2d 1032 [1995] [emphasis omitted], quoting

899 N.Y.S.2d 391

Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 55, 467 N.Y.S.2d 182, 454 N.E.2d 522 [1983]; see former Code of Professional Responsibility DR 5-105, DR 5-102 [22 NYCRR 1200.24, 1200.21]). Moreover, the

72 A.D.3d 1213

additional presence at the interview of defendant's retained counsel and a crime victim's caseworker detracts from defendant's claim that she developed a protected relationship with the prosecutor during that interview, especially considering that defendant maintained a story throughout the questioning that later proved to be fabricated ( compare People v. Herr, 86 N.Y.2d at 642, 635 N.Y.S.2d 159, 658 N.E.2d 1032; People v. Shinkle, 51 N.Y.2d 417, 420-421, 434 N.Y.S.2d 918, 415 N.E.2d 909 [1980] ).

Next, defendant did not preserve for appellate review her claims that the convictions on counts 3 and 4 are not supported by legally sufficient evidence and we decline to exercise our interest of justice jurisdiction ( see People v. Arce, 70 A.D.3d 1196, 1198, 894 N.Y.S.2d 599 [2010] ).¹ Defendant further contends that her version of the events contained in her written statement with respect to count 3 is sufficiently similar to the testimony of the officer at trial such that the conviction is against the weight of the evidence. Because a contrary verdict on this count would not have been unreasonable, we must weigh this conflicting evidence in a neutral manner and in light of the elements of the crime as charged to the jury to determine whether the jury was justified in...