| People v Westervelt |
| 2008 NY Slip Op 00008 [47 AD3d 969] |
| January 3, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ErickWestervelt, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the Supreme Court (Teresi, J.), rendered August 25,2005 in Albany County, upon a verdict convicting defendant of the crime of murder in thesecond degree.
At approximately noon on October 6, 2004, a neighbor discovered Timothy Gray, who wasunconscious, badly beaten and in a pool of blood, in the backyard of Gray's residence in theTown of Bethlehem, Albany County. Subsequent investigation indicated that Gray had beenattacked the evening of October 5, 2004 when Gray's housemates, including his girlfriend,Jessica Domery, had been working out of the area. Defendant was identified by police as aperson of interest since he had recently dated Domery and, when she terminated that relationship,defendant had engaged in a series of actions aimed at intimidating and harassing Domery andGray, including an earlier physical altercation with Gray. On October 7, 2004, defendantaccompanied a member of the Town of Bethlehem police department to the police station, wherehe was informed of his Miranda rights, told he was not under arrest, then questioned forabout four hours by detectives Charles Rudolph and Christopher Bowdish. He deniedinvolvement in the crime, permitted police to search his car and agreed to return the followingday to take a polygraph examination at a City of Albany police station.
On October 8, 2004, defendant was administered his Miranda rights and then began a[*2]polygraph examination, which he terminated part way into theprocess. According to Bowdish and Rudolph, shortly thereafter he told them, "I did it." Whilestill at the Albany police station, Miranda rights were reread to defendant and he thengave a detailed written statement in which, among other things, he admitted punching Gray,kicking him in the face, striking him in the head and face with a wooden replica hatchet, andleaving a note written in Italian (which he had made using a translation Web site on a computerin a public library) in an effort to detract suspicion. Such a note had been discovered at thepremises. Defendant also drew a map of the crime scene. Defendant was placed in custody andtaken back to the Bethlehem police station for booking, where he was again givenMiranda warnings. When he expressed remorse about the incident, Bowdish suggestedthat he write a letter of apology and provided him with paper and a pen. Defendant then wrote aletter to Domery which mentioned his remorse while going on at some length about his feelingsfor Domery. Subsequently, on October 12, 2004, a correction officer at the county jail overhearddefendant making an inculpatory statement to another inmate and the officer then engaged him ina conversation resulting in further incriminating statements.
In the meantime, on October 10, 2004, Gray died of the injuries sustained in the attack.Defendant was indicted on two counts of murder. A combined Huntley-Mapp-Dunawayhearing was conducted, after which County Court (Herrick, J.) denied defendant's motion tosuppress his various statements with the exception of a portion of his statement to the correctionofficer and, as to that statement, the initial statement that the officer overheard was permitted andthe statements thereafter when the officer engaged defendant in a conversation were suppressed.Following a jury trial, defendant was convicted of one count of intentional murder in the seconddegree and sentenced to a prison term of 25 years to life. Defendant appeals alleging that hiswritten statement should have been suppressed as involuntary and the fruit of an unlawful arrest,his apology letter should not have been admitted into evidence since part of it was written afterhis right to counsel had attached, and the prosecutor made comments in summation that deprivedhim of a fair trial.
We consider first defendant's contention that his written statement should have beensuppressed as involuntary and unreliable. The issue of the voluntariness of a statement is afactual question determined by the totality of the circumstances (see People v May, 263AD2d 215, 219 [2000], lv denied 94 NY2d 950 [2000]; People v White, 261AD2d 653, 654 [1999], lv denied 93 NY2d 1029 [1999]). The use of police stratagems,including a polygraph, are relevant circumstances to consider, but these will generally "not rendera confession involuntary unless there is a showing that 'the deception was so fundamentallyunfair as to deny due process . . . or that a promise or threat was made that couldinduce a false confession' " (People v Sobchik, 228 AD2d 800, 802 [1996], quotingPeople v Tarsia, 50 NY2d 1, 11 [1980]; see People v Sohn, 148 AD2d 553,555-556 [1989], lv denied 74 NY2d 747 [1989]; see also People v Dishaw, 30 AD3d 689, 690-691 [2006], lvdenied 7 NY3d 787 [2006]).
Here, on the first day of questioning, defendant agreed to go to the police station. He wasgiven Miranda warnings and elected to talk with the police. He was interviewed bydetectives for about four hours and thereafter was permitted to leave. He voluntarily returned thenext day knowing he would take a polygraph. He received Miranda warnings before thepolygraph and elected to stop part way through the process. Defendant then made an oraladmission, Miranda warnings were again administered and he proceeded to give adetailed statement in his own handwriting which started by acknowledging that he was makingthe statement of his "own free will." The credibility and factual determinations of the suppressioncourt are supported by the record and we find no error in its suppression ruling. The police [*3]conduct was not "such as to overbear the defendant's will" (People v Bridges, 16 AD3d 911,912 [2005], lv denied 4 NY3d 884 [2005]; see People v Fitzgerald, 275 AD2d720, 720 [2000], lv denied 96 NY2d 734 [2001]).
Nor do we find merit in defendant's argument that his written statement was the fruit of anunlawful arrest. Although defendant denied at trial that he verbally told the detectives followingthe polygraph that he had attacked Gray, the detectives' testimony at the suppression hearing(which the suppression court found credible) and at the trial was to the contrary. There is noreason in this record to reject the detectives' testimony that defendant made the oral admission.Defendant's oral statement provided probable cause to place him in custody and, accordingly, hiswritten statement was not the fruit of an unlawful arrest (see generally People v Bell, 5 AD3d 858, 859 [2004]; People vStrauss, 238 AD2d 721, 722-723 [1997], lv denied 91 NY2d 836 [1997]).
Defendant further contends that his apology letter to Domery should not have been admittedinto evidence since it was obtained in violation of his right to counsel. This contention ispremised upon proof elicited at trial that the last part of the letter was written afterarraignment.[FN*]Initially, we note that, contrary to the People's suggestion that defendant was required to make amotion to reopen the suppression hearing in order to preserve this issue (see generallyCPL 710.40), the Court of Appeals has made clear that "a claimed deprivation of the Stateconstitutional right to counsel may be raised on appeal, notwithstanding that the issue was notpreserved by having been specifically raised in a suppression motion or at trial" as long as thereis a "factual record sufficient to permit appellate review" (People v Kinchen, 60 NY2d772, 773-774 [1983]; see People v Ramos, 99 NY2d 27, 30 [2002]). Here, the record issufficient for review and, moreover, defense counsel objected at the time the letter was offered attrial on the specific ground that it contained a postarraignment statement made without counselpresent.
Turning to the merits of the argument, it is well settled that the state constitutional right tocounsel attaches when formal judicial proceedings begin (see People v Ramos, 99 NY2dat 32; People v Samuels, 49 NY2d 218, 221 [1980]) and, once that right attaches, lawenforcement officials may not question a defendant outside the presence of counsel (seePeople v West, 81 NY2d 370, 377 [1993]; People v Hilliard, 20 AD3d 674, 676 [2005], lv denied 5NY3d 853 [2005]). The proof revealed that the police suggested to defendant that he write theapology letter, they provided him with the pen and paper, after arraignment his handcuffs wereremoved and the uncompleted letter was made available to defendant by police with no requestby defendant, and a portion of the letter was then written. This police tactic elicited a furtherincriminating statement that cannot be characterized as a spontaneous statement made voluntarily(see People v Maerling, 46 NY2d 289, 302-303 [1978]; compare People v Baybury, 30 AD3d627, 628 [2006], lv denied 7 NY3d 785 [2006]). Under these circumstances, it waserror to admit the letter into evidence.[*4]
However, on this record, we conclude that such error washarmless. "[A] constitutional error requires a reversal of a conviction and a new trial unless theerror is harmless beyond a reasonable doubt, that is, 'there is no reasonable possibility that theerror might have contributed to defendant's conviction' " (People v Smith, 97 NY2d 324,330 [2002], quoting People v Crimmins, 36 NY2d 230, 237 [1975]; see People v Wardlaw, 6 NY3d556, 560-561 [2006]; People vGoldstein, 6 NY3d 119, 129-130 [2005]). Evidence of guilt at trial included, amongother things, defendant's oral admission to the detectives, his detailed written statement (whichwas consistent with evidence at the crime scene and the method of attack), the admissible portionof his inculpatory statement overheard by the correction officer, and that a Google searchconducted on the computer at his home prior to the crime included "murder with note with letterleft behind." In light of the overwhelming proof of guilt, reversal is not required (see generally People v Paulman, 5NY3d 122, 134 [2005]).
Finally, we are unpersuaded by defendant's contention that comments by the prosecutorduring summation constituted reversible error. The following statement by the prosecutor wasobjected to upon the ground that the prosecutor was shifting the burden of proof: "Now, whatperson wants to kill [Gray] and would know of anybody that was willing to do that more than thedefendant?" Supreme Court immediately instructed the jury to disregard the comment and, in thecontext of the entire trial, this comment was not so prejudicial as to deprive defendant of a fairtrial (see People v Halm, 81 NY2d 819, 821 [1993]; People v Beyer, 21 AD3d 592, 595 [2005], lv denied 6NY3d 752 [2005]). The remaining comments about which defendant complains were notpreserved by a timely objection (seePeople v Silvestri, 34 AD3d 986, 987 [2006]; People v Studstill, 27 AD3d 833, 835 [2006], lv denied 6NY3d 898 [2006]). In any event, were we to consider such comments, we would not find thatthey were so "pervasive or flagrant" as to necessitate reversal and a new trial (People v Blair, 32 AD3d 613, 614[2006]; see People v Hughes, 280 AD2d 694, 696-697 [2001], lv denied 96NY2d 801 [2001]).
Mercure, J.P., Peters, Carpinello and Kane, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: The time line of when thearraignment occurred with respect to the apology letter had not been developed at the earliersuppression hearing. The proof as to such issue at trial included portions of a videotape from thesquad room where defendant wrote the letter and Bowdish's acknowledgment at trial thatdefendant "finished it up" after arraignment.