| People v Rogers |
| 2012 NY Slip Op 02729 [94 AD3d 1246] |
| April 12, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Francis J.Rogers, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Broome County (Cawley, J.),rendered January 5, 2011, upon a verdict convicting defendant of the crimes of manslaughter inthe first degree, manslaughter in the second degree, aggravated criminal contempt, criminalcontempt in the second degree (11 counts), assault in the third degree and attempted assault in thethird degree (three counts).
The victim, who was romantically involved with defendant, was last seen with him at variousbars. Two days later, she was found dead in her apartment. Defendant was charged with murderin the second degree, manslaughter in the first degree, aggravated criminal contempt, criminalcontempt in the second degree (11 counts), assault in the third degree and attempted assault in thethird degree (three counts). Following a trial, the jury acquitted him of depraved indifferencemurder under the first count, but convicted him of manslaughter in the second degree as a lesserincluded offense of that count and of all other counts contained in the indictment. County Courtsentenced him to concurrent terms, the longest of which was 23 years in prison followed by fiveyears of postrelease supervision. Defendant appeals.
County Court properly denied defendant's motions to suppress evidence. A search [*2]warrant that has been approved by a reviewing magistrate iscloaked with a presumption of validity (see People v Castillo, 80 NY2d 578, 585 [1992])."[S]earch warrant applications should not be read in a hypertechnical manner as if they wereentries in an essay contest[,] . . . [but] must be considered in the clear light ofeveryday experience and accorded all reasonable inferences" (People v Hanlon, 36 NY2d549, 559 [1975]). The search warrant application contained sworn allegations of fact that, amongother things, the victim died in a suspicious manner, the clothing she was last seen wearing wasnot located, defendant was the last person seen with her, an order of protection prohibiteddefendant from having any contact with the victim, he had previously injured her, and theinjuries resulting in her death were consistent with her head striking a flat object. The applicationsought permission to search defendant's home for, among other things, the victim's clothing, aflat object consistent with the victim's head injury, the clothing that defendant was wearing onthe night he was last seen with the victim, cellular phones that could be examined for call logs,and blood, hair or fibers that could be evaluated for the presence of DNA. The court did not err inupholding the validity of the search warrant, as the information in the application was sufficientto support a reasonable belief that evidence of a crime—whether assault, murder, orcriminal contempt for having contact with the victim in violation of the no-contact order ofprotection—may be found in defendant's home (see People v Harris, 83 AD3d 1220, 1222 [2011], lv denied17 NY3d 817 [2011]).
County Court did not err in denying defendant's motion to sever counts of the indictment.Offenses are joinable if, among other things, they are based upon different criminal transactionsbut defined by the same or similar statutory provisions, or if proof of either offense would bematerial and admissible as evidence-in-chief at the trial of the other offense (see CPL200.20 [2] [b], [c]). If the offenses were joined in an indictment solely because they were basedon similar statutes, a court has discretion to order them separately tried "in the interest of justiceand for good cause shown" (CPL 200.20 [3]). If the offenses were properly joined on any otherbasis, however, "the court lack[s] statutory authority to sever" (People v Bongarzone, 69NY2d 892, 895 [1987]; see People v Lane, 56 NY2d 1, 7 [1982]; see also CPL200.20 [3]). Here, the murder, manslaughter and aggravated criminal contempt counts werejoinable because they were part of the same criminal transaction (see CPL 200.20 [2][a]). The counts charging assault, attempted assault and criminal contempt were material andadmissible to establish defendant's identity as the killer, his access to the victim despite the orderof protection, and his intent to have contact with and injure the victim (see People v Carter, 74 AD3d1375, 1378 [2010], lv denied 15 NY3d 772 [2010]; People v Cherry, 46 AD3d 1234,1236 [2007], lv denied 10 NY3d 839 [2008]; see also CPL 200.20 [2] [b]).Hence, as the offenses were properly joined, the court lacked authority to grant defendant'sseverance motion (see People v Bongarzone, 69 NY2d at 895; People v Cherry,46 AD3d at 1236).
County Court did not err in allowing the People to introduce hearsay statements underexceptions to the hearsay rule. The victim's statements that she was abused and threatened bydefendant on a particular night in April 2009—four months prior to her death—wereadmissible as excited utterances. The victim's roommate testified that the victim was scared,crying, shaking and in pain in the early morning hours when the victim stated that she had beenin an argument with defendant, he "was beating her," and "he was choking her so hard that shecouldn't yell for help." The roommate then helped the victim, who was sobbing and hysterical,call her sister. When the sister's boyfriend answered, the victim stated that defendant beat her up.The sister and her boyfriend arrived at the victim's apartment soon thereafter, where theboyfriend saw that she still appeared shaken and in pain, her lip was bloody, her eye was swollenand she was cradling [*3]her swollen hand. The boyfriendtestified that the victim stated that defendant suddenly got on top of her, choked her and punchedher in the face a couple of times. According to the victim, while this was happening, her hand gotwedged between the bed and the windowsill but defendant kept pressing on her hand, knowingthat she was in pain. When she finally pushed him off, defendant grabbed her high-heeled shoe,placed the pointed heel under her chin and "told her that I will or I could kill you." Based on thistestimony, her statements were admissible as excited utterances because they were "made underthe stress of excitement caused by an external event, and not the product of studied reflection andpossible fabrication" (People vJohnson, 1 NY3d 302, 306 [2003]; see People v Blackman, 90 AD3d 1304, 1308-1309 [2011]).
Additionally, "[s]ilence, when one would naturally be expected to deny a statement made inhis [or her] presence, is a tacit admission of the truth of the statement, rendering it admissible"(People v Ross, 68 AD2d 962, 963 [1979]). The victim's sister testified that, on anotheroccasion when she saw the victim with an icepack on her head, she accused defendant of injuringthe victim, but defendant simply left the apartment without saying anything. Another witnesstestified that on a different occasion he heard the victim tell defendant that, when she had twoblack eyes, she had to lie about being in a car accident to prevent others from knowing that shewas in an abusive relationship; the witness did not hear defendant make any response. CountyCourt properly determined that a sufficient foundation had been laid for this testimony, such thatthe jury could consider it to determine if defendant had adequately heard and understood thestatements and would be expected to deny them but did not (see People v Campney, 94NY2d 307, 311-313 [1999]). Thus, although hearsay, these statements were admissible underexceptions to the hearsay rule as tacit admissions or excited utterances.
The verdict finding defendant guilty of manslaughter in the first degree was not against theweight of the evidence.[FN1]Defendant acknowledges that the evidence was sufficient to support a conviction for recklessmanslaughter (manslaughter in the second degree), but attacks his conviction for intentionalmanslaughter (manslaughter in the first degree). In conducting a weight of the evidence review,this Court sits as a thirteenth juror and weighs "the evidence in light of the elements as charged tothe other jurors" (People vDanielson, 9 NY3d 342, 349 [2007]). The People were required to prove that, withintent to cause serious physical injury to the victim, defendant caused her death (seePenal Law § 125.20 [1]). Intent may be inferred from a person's actions and thesurrounding circumstances (see People vMolina, 79 AD3d 1371, 1376 [2010], lv denied 16 NY3d 861 [2011]). Ascharged to the jury, "[s]erious physical injury means impairment of a person's physical conditionwhich creates a substantial risk of death or which causes death or serious and protracteddisfigurement, protracted impairment of health or protracted loss or impairment of the functionof any bodily organ" (accord Penal Law § 10.00 [10]).[*4]
The evidence established that defendant was the lastperson seen with the victim, he was prohibited from contacting her pursuant to an order ofprotection, her vehicle was left in a parking garage, police could not locate the clothing thevictim was wearing when she was last seen out with defendant, and she was found dead in herbed with her underwear put on improperly. During a previous argument, defendant hadthreatened that he would or could kill her. The victim was petite, while defendant was muchlarger and could bench press 200 pounds. The pathologist who conducted the autopsy testifiedthat the victim had bruising above her left eye, a bruised right lung, scrapes on both knees and thetop of one foot, a hemorrhage to the back of her brain and a tear between the hemispheres of thebrain caused by blunt force trauma. The pathologist opined that her death was a homicide.Defendant's expert pathologist disagreed, opining that the victim fell two or three times due tointoxication and died an accidental death. A wall in defendant's home had an indentation at thelevel of the victim's head, permitting an inference that he slammed her head into the plasterwall—which would give somewhat—causing the internal brain trauma withoutobvious external injuries to her head. The pathologist testified that the victim would likely havebeen rendered dazed, stuporous or unconscious following these injuries, but that she could havesurvived if she had received medical attention and not been left alone. A witness testified thatdefendant stated, when asked if he had killed the victim, that "they had an argument and hegrabbed her and threw her into a wall and put her in bed and then that was it." Giving deferenceto the jury's credibility determinations (see People v Romero, 7 NY3d 633, 644-645 [2006]), the weight ofthe evidence supports findings that defendant intended to cause serious physical injury to thevictim and that he caused her death by beating her, including slamming her into a wall.
Defendant did not object to County Court's jury charge regarding manslaughter in the firstdegree or the court's response to notes from the jury. He thus did not preserve his arguments onthose issues (see People v Kadarko,14 NY3d 426, 429-430 [2010]; People v Starling, 85 NY2d 509, 516 [1995]; People v Heier, 90 AD3d 1336,1339 [2011]). We will address these arguments only to the extent that defendant alleges that thefailure to preserve them constitutes ineffective assistance of counsel. The indictment sufficientlyinformed defendant of the charges against him. Although the count charging manslaughter in thefirst degree did not include the full statutory definition of serious physical injury, the court didnot err or fundamentally change the prosecution's theory of the crime by including the fulldefinition in its charge to the jury (see People v Grega, 72 NY2d 489, 495-496 [1988]; People v Hilliard, 49 AD3d 910,913 [2008], lv denied 10 NY3d 959 [2008]).[FN2]Additionally, the court satisfied its duty when it recited the full contents of the jury's note on therecord, even though the court did not read each word of the note aloud (see CPL 310.30;People v O'Rama, 78 NY2d 270, 277-278 [1991]; see also People v Woodrow, 89 AD3d 1158, 1160 [2011]). Thecourt answered the questions that were asked by the jury and provided meaningful responses tothe requests for further instruction (seePeople v Santi, 3 NY3d 234, 248-249 [2004]; People v Arce, 70 AD3d 1196, 1197 [2010]). Counsel otherwiseprovided effective assistance, including thoroughly cross-examining witnesses, calling defensewitnesses including an expert pathologist, and asserting coherent defenses that the victim diedaccidentally and no evidence directly linked defendant to her death. Counsel also [*5]successfully moved to suppress defendant's pretrial statements andobtained an acquittal on the murder charge. Thus, defendant was provided with meaningfulrepresentation.
Defendant's remaining arguments have been considered and are without merit.
Spain, J.P., Malone Jr., Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: Defendant concedes that hefailed to preserve his argument regarding the legal sufficiency on this count through his motionfor a trial order of dismissal. Nevertheless, we assess the sufficiency of the evidence as part ofour weight of the evidence review (seePeople v Danielson, 9 NY3d 342, 348-349 [2007]).
Footnote 2: Serious physical injury was notseriously contested at trial and County Court's charge had no effect on the defense advanced attrial, which was that defendant had nothing to do with the victim's injuries. Accordingly,defendant was not prejudiced by the court charging the full statutory definition.