| People v Pavone |
| 2014 NY Slip Op 03881 [117 AD3d 1329] |
| May 29, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vAnthony V. Pavone, Appellant. |
Paul J. Connolly, Delmar, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel),for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Clinton County (McGill,J.), rendered August 7, 2011, upon a verdict convicting defendant of the crimes ofmurder in the first degree (two counts) and criminal possession of a weapon in thesecond degree.
On Sunday, January 31, 2010 at 3:50 a.m., Patricia Howard placed a 911 call fromTimothy Carter's residence—located on State Route 374 near Chazy Lake in theTown of Dannemora, Clinton County—advising State Police that defendant, herformer boyfriend, was on the premises, had been "knocking on the door . . .for the last 20 minutes or so" and was refusing to leave. State Police dispatched twotroopers to the scene and, shortly before the responding troopers arrived, one of Carter'sneighbors, Floyd Guerin, called 911 to report hearing a series of "pops" coming fromCarter's residence. Guerin further advised State Police that he saw anindividual—carrying what "[l]ooked like a pistol"—leaving that location ina "[d]ark color GMC" truck and heading back toward Dannemora. Literally seconds afterthis individual—later identified as defendant—left Carter's residence, theresponding troopers arrived to find both Howard and Carter dead from gunshotwounds.
After returning to his residence to assemble a survival backpack, defendant leftClinton County and eventually checked into the Del Motel in the Town of Kirkwood,Broome County under a false name. At approximately 10:15 p.m. on February 4, 2010, aBroome County sheriff's deputy, who had been advised that defendant was wanted forquestioning in connection with a double homicide in Clinton County, spotted a black2001 GMC Sierra—registered to defendant—in the parking lot of themotel. Additional law enforcement personnel, including a hostage negotiator, weresummoned and, approximately 2
Defendant subsequently was indicted and charged with two counts of murder in thefirst degree, two counts of murder in the second degree and one count of criminalpossession of a weapon in the second degree. At trial, defendant admitted that he killedHoward and Carter, but contended that he did so while acting under an extremeemotional disturbance. The jury rejected this affirmative defense and convicteddefendant of two counts of murder in the first degree and the related weapons charge.County Court thereafter imposed concurrent prison terms of life without the possibility ofparole for the murder convictions, in addition to a concurrent 10-year prison term for theweapons conviction. Defendant now appeals.
We affirm. Although we agree with defendant that the People violated hispost-Miranda right to remain silent by, among other things, eliciting testimony ontheir case-in-chief regarding his failure to apprise the law enforcement officials whoapprehended/transported him that he acted under an extreme emotional disturbance at thetime of the shootings, defense counsel—with one exception—did not objectto any of the challenged testimony or comments at trial, nor did he request any curativeor limiting instructions with respect thereto. Accordingly, this issue is largelyunpreserved for our review (see CPL 470.05 [2]; cf. People v Fox, 60 AD3d966, 967 [2009], lv denied 12 NY3d 915 [2009]). To the extent thatdefendant now claims that counsel's performance was deficient in this regard, therebycompelling this Court to take corrective action in the interest of justice,[FN1]
we disagree. In any event, contrary to the position adopted by the dissent, theadmission of the challenged testimony was—for the reasons thatfollow—harmless in light of the overwhelming evidence establishing bothdefendant's guilt beyond a reasonable doubt and his corresponding failure to prove hisaffirmative defense of extreme emotional disturbance by a preponderance of theevidence.
In a prosecution for murder in the first degree, a defendant may assert the affirmativedefense of extreme emotional disturbance (see Penal Law § 125.27[1] [a] [viii]; [b]; [2] [a]), which, if successful, reduces the defendant's degree of criminalculpability to manslaughter in the first degree (see People v Harris, 95 NY2d 316,318-319 [2000]). Notably, the defense "does not negate intent" (People v Cass, 18 NY3d553, 561 [2012] [internal quotation marks and citation omitted]; accord People v Sepe, 111AD3d 75, 86 [2013], appeal dismissed 22 NY3d 1126 [2014]; see People v Moronta, 96AD3d 418, 419 [2012], lv denied 20 NY3d 987 [2012]) but, rather, "allowsa defendant charged with the commission of acts which would otherwise constitutemurder to demonstrate the existence of mitigating factors which indicate that, although. . . not free from responsibility for [the] crime, [defendant] ought to bepunished less severely" (People v Sepe, 111 AD3d at 86 [internal quotationmarks and citations omitted]; see People v Harris, 95 NY2d at 318-319;People v Casassa, 49 NY2d 668, 679-681 [1980], cert denied 449 US 842[1980]; People v Moronta, 96 AD3d at 419).
As the Court of Appeals has instructed, the extreme emotional disturbance defense iscomprised of both subjective and objective elements. "The subjective element focuses onthe defendant's state of mind at the time of the crime and requires sufficient evidence thatthe defendant's conduct was actually influenced by an extreme emotional disturbance"(People v Harris, 95 NY2d at 319 [citations omitted]; see People v Cass,18 NY3d at 561), i.e., "that the [defendant's] claimed explanation as to the cause of his[or her] action [was] not contrived or [a] sham" (People v Casassa, 49 NY2d at679). This subjective element is "generally associated with a loss of self-control"(People v Harris, 95 NY2d at 319; see People v Sepe, 111 AD3d at 86).The objective element, in turn, "requires proof of a reasonable explanation or excuse forthe emotional disturbance . . .
[, which] must be determined by viewing the subjective mental condition of thedefendant and the external circumstances as the defendant perceived them to be at thetime, however inaccurate that perception may have been, and assessing from thatstandpoint whether the explanation or excuse for [the] emotional disturbance wasreasonable" (People v Harris, 95 NY2d at 319 [internal quotation marks andcitations omitted]; see People v Cass, 18 NY3d at 561; People v Casassa,49 NY2d at 679; People v Sepe, 111 AD3d at 86).
To be sure, the extreme emotional disturbance defense "is significantly broader inscope than the 'heat of passion' doctrine [that] it replaced" (People v Casassa, 49NY2d at 676; see People v Sepe, 111 AD3d at 86) and, for that reason, the"[a]ction[s] influenced by [such defense] need not be spontaneous" (People v Wells, 101 AD3d1250, 1252 [2012], lv denied 20 NY3d 1066 [2013]). " 'Rather, itmay be that a significant mental trauma has affected a defendant's mind for a substantialperiod of time, simmering in the unknowing subconscious and then inexplicably comingto the fore' " (People v Casassa, 49 NY2d at 676, quoting People vPatterson, 39 NY2d 288, 303 [1976], affd 432 US 197 [1977]; see Peoplev Wells, 101 AD3d at 1252). That said, evidence demonstrating a defendant's "highdegree of self-control" (People vBonilla, 57 AD3d 400, 401 [2008], lv denied 12 NY3d 814 [2009]; see People v Mohamud, 115AD3d 1227, 1228 [2014]; People v Moronta, 96 AD3d at 420) or "theplanned and deliberate character of the [underlying] attack" (People v Acevedo, 56 AD3d341, 341 [2008], lv denied 12 NY3d 813 [2009]; accord People vMoronta, 96 AD3d at 420), as well as any "postcrime conduct . . .suggest[ing] . . . that [the defendant] was in full command of his [or her]faculties and had consciousness of guilt" (People v Acevedo, 56 AD3d at341-342; see People vParra, 58 AD3d 479, 480 [2009], lv denied 12 NY3d 820 [2009]), isentirely inconsistent with an extreme emotional disturbance defense.
At trial, there was no dispute that defendant killed Howard and Carter; indeed,defendant testified and readily admitted that he did so. Rather, the question was whetherthere existed sufficient mitigating circumstances to demonstrate that defendant's conductwas deserving of some measure of leniency or mercy (see People v Harris, 95NY2d at 318-319; People v Casassa, 49 NY2d at 680-681). On this point, thejury was presented with two conflicting expert opinions as to whether defendant sufferedfrom an extreme emotional disturbance at the time of the killings and, further,whether—from his perspective—there was a reasonable explanation for hisactions. Had those expert opinions been the sole basis upon which to evaluatedefendant's affirmative defense, we would agree that this matter presented a "close case"relative thereto. However, there was extensive additional proof documenting defendant'sstatements and actions before, during and after the commission of the crimes, and it isdefendant's own words and behaviors that—in our view—completelyundermine his claimed defense.
The record reflects that at some point on Friday, January 29, 2010, defendant learnedthat Howard—his former girlfriend—was dating Carter. In response,defendant conducted an Internet search in order to obtain Carter's address and telephonenumber. Beginning that afternoon and continuing up until the early morning hours ofSunday, January 31, 2010, defendant left a series of increasingly belligerent andthreatening phone messages for Howard and Carter—all of which reflect hisrepeated efforts to talk to Howard, ascertain her whereabouts and attempt to cajole herinto returning to him. In addition to persistently calling Howard, defendantalso—at some point during the evening of Saturday, January 30,2010—drove to Howard's house and knocked on the door to see if she was home.When he received no answer, defendant drove to the residence occupied by Howard'sdaughter, hoping that he would find Howard there. When he failed to locate Howard atthat address, defendant returned to his home, began calling Carter and resumed hisattempts to reach Howard by telephone.
After leaving a final message on Carter's answering machine at 1:36 a.m. thatSunday,[FN2]
defendant—armed with a .357 Smith and Wesson revolver—then droveto Carter's residence (a three-unit dwelling) and began knocking on doors in an attemptto locate Howard and Carter. One resident, Wendall Davenport, testified that he awoke toa knock at his door at approximately 3:30 a.m. on Sunday, January 31, 2010. When heanswered the door, a man—later identified as defendant—said that the "heatin [his] apartment [was] out" and asked where Carter lived. According to Davenport,who spoke with defendant for approximately three minutes, defendant was "polite" and"well aware." Another resident, Nicole Light, also testified that a man—again,later identified as defendant—knocked on her door around 3:30 a.m. and asked ifCarter lived there. When Light informed defendant that Carter lived next door, defendantasked if Carter was at home. When Light indicated that she did not know whether Carterwas home, defendant responded, "[W]ell, his truck's here so he must be home."According to Light, defendant, who apologized for waking her up in the middle of thenight, appeared "a little flustered" but overall "seemed pretty normal at that time."
Shortly after speaking with Davenport and Light, defendant knocked on the door toCarter's apartment and eventually spoke with Howard, who said, "[G]o home, we'll talkabout it later." When defendant refused to leave, Howard placed her 911 call to the StatePolice at 3:50 a.m. At some point thereafter, defendant got into his truck and started todrive away. After driving approximately 200 feet, however, defendant turned around andreturned to Carter's residence with the revolver.
Defendant again spoke with Howard and, in response to an alleged taunt fromHoward and Carter's purported statement that he had a weapon, defendant pulled out hisrevolver and fired two shots through the glass window in the door. Defendant thenreached through the window, unlocked the door and entered Carter's residence, firingfour additional shots. Although the precise shooting sequence is unclear, Howardultimately sustained two wounds—one to her chest followed by the fatal gunshotwound to her head. Although the pathologist was of the view that Howard most likelywas standing when she sustained the chest wound, he testified that her fatal head injurywas consistent with "somebody . . . in a down position[,] whether on theirknees or bent over or some position where the head is down." Defendant, for his part,could not recall precisely how Howard sustained her fatal head wound, but he denied"purposely step[ping]" on her—despite a photograph contained in the recordclearly depicting "pieces of glass . . . shaped in a footprint right at the centerof [Howard's] back." As for Carter, the pathologist testified that Carter sustained a bulletwound to his left shoulder followed by the fatal wound to his right shoulder. Notably, theangle of trajectory and the fact that the second bullet did not fully exit Carter's body"suggest[ed that] he was shot while he was down on his left side." Six .357 shell casingswere found in the living room of Carter's residence—five on a coffee table andone on the floor nearby.[FN3]
Following the shootings, defendant returned to his residence and, as notedpreviously, assembled a survival backpack—purportedly planning to walk to hisfather's residence—containing sufficient provisions to sustain "two or three ormaybe four days [of] hiking."[FN4]
Defendant, however, did not embark upon that trek; instead, he packed the loaded.357 revolver, removed the battery from his cell phone, secreted $400 in his underwear,drove to Broome County and checked into the Del Motel under a false name.
To our analysis, defendant systematically hunted down and then executed Howardand Carter, and the foregoing proof—consisting of defendant's own words andadmitted actions leading up to, during and following the shootings—evidences alevel of calculation, planning, calm deliberation and consciousness of guilt that is bothentirely inconsistent with his claimed extreme emotional disturbance defense andcompletely undeserving of any leniency or mercy. Although the testimony offered bydefendant's expert witness was, as County Court properly concluded, sufficient to submitthe defense to the jury, the foregoing proof, coupled with Davenport's and Light'srespective statements as to defendant's demeanor immediately prior to the shootings,overwhelmingly establishes both that defendant is guilty beyond a reasonable doubt andthat he failed to prove his affirmative defense by a preponderance of the evidence(see People v Parra, 58 AD3d at 480; cf. People v Mohamud, 115 AD3dat 1228; People v Moronta, 96 AD3d at 420; People v Acevedo, 56 AD3dat 341-342), leading us to conclude that there is no reasonable possibility that the jury'sverdict would have been different but for the admission of the challenged testimony. Wetherefore find that the error in this regard was harmless (see People v Abare, 86 AD3d803, 804-805 [2011], lv denied 19 NY3d 861 [2012]; People v Nelson, 69 AD3d762, 763 [2010], lv denied 15 NY3d 807 [2010]; People v Romero, 54 AD3d781, 781 [2008], lv denied 11 NY3d 930 [2009]; People v Loaiza,201 AD2d 587, 587-588 [1994], lv denied 83 NY2d 912 [1994]; cf. People v Copp, 107 AD3d911, 912 [2013], lv denied 21 NY3d 1041 [2013]; compare People v Theodore,113 AD3d 703, 704 [2014]; People v McArthur, 101 AD3d 752, 752-753 [2012], lvdenied 20 NY3d 1101 [2013]; People v Patterelli, 68 AD3d 1151, 1154-1155 [2009]; People v Stewart, 20 AD3d769, 770-771 [2005]). Defendant's remaining contentions, including the balance ofhis ineffective assistance of counsel claim, have been examined and found to be lackingin merit.
McCarthy, J.P., and Rose, J., concur.
Garry, J. (dissenting). I respectfully dissent. As the majority concedes, an error ofconstitutional dimension occurred during this trial, when evidence of defendant's pretrialexercise of his right to remain silent was improperly used against him. The restrictionagainst use of a defendant's silence is premised upon the fundamental unfairness thatarises when the state implicitly assures an arrested person that silence will not be usedagainst him or her and then reneges upon that promise (see Doyle v Ohio, 426 US610, 618-619 [1976]; People v Savage, 50 NY2d 673, 677-678 [1980], certdenied 449 US 1016 [1980]). Whether a defendant's silence is used as part of thePeople's direct case, for impeachment purposes, or—as here—to challenge adefense, "[t]he implicit promise, the breach, and the consequent penalty are identical"and the unfairness is not altered (Wainwright v Greenfield, 474 US 284, 292[1986]; see People v Conyers, 52 NY2d 454, 459 [1981]; People v Stewart, 20 AD3d769, 770-771 [2005]; People v Goldston, 6 AD3d 736, 737-738 [2004]). As thiswas a constitutional violation, the test applied upon review is stringent: the error may bedeemed harmless only if the evidence is so overwhelming that there is no reasonablepossibility that the error affected the verdict (see People v Patterelli, 68 AD3d 1151, 1155 [2009]; People v Murphy, 51 AD3d1057, 1058 [2008], lv denied 11 NY3d 792 [2008]; People vStewart, 20 AD3d at 770-771). I cannot agree with the majority that this strictstandard was satisfied.
The issue posed is not whether defendant shot and killed the two victims—thatevidence is most clearly overwhelming. The sole issue before this Court involves thequantum of evidence disproving defendant's claim of extreme emotionaldisturbance—a defense that, notably, he was required to establish only by apreponderance of the evidence (see Penal Law § 25.00 [2];People v Patterson, 39 NY2d 288, 301 [1976]). In this respect, defendantpresented the expert testimony of a forensic psychiatrist who testified that, following a2006 incident in which defendant was assaulted and injured while working as a prisonguard, he suffered from post-traumatic stress disorder and major depressive disorder.This expert testified that defendant's career, financial security, and family and socialnetworks broke down in the years following his injury; he was unable to return to work,required ongoing psychiatric treatment, suffered from fearfulness, paranoia and recurrentmajor depressive episodes, and his turbulent, on-again, off-again relationship withPatricia Howard became his "life line." In the weeks just before the shooting, thatrelationship, too, broke down, resulting in what the forensic psychiatrist described asaccelerating distress and depression, as defendant's anxiety and forgetfulness worsenedand his judgment and cognition deteriorated. Defendant's expert opined that the"frenetic" telephone calls to Howard and Timothy Carter just before the shootingsreflected increasing desperation and "anguish." According to the expert, by the timedefendant confronted Howard at Carter's residence, he was psychologically andphysically debilitated such that he felt that his life would end if he lost Howard; when sheallegedly made a taunting remark about her relationship with Carter, defendant wasoverwhelmed and lost control. Given these forces, in the expert's professional opinion,defendant was suffering from extreme emotional disturbance when he shot thevictims.
It was the jury's prerogative to reject this psychiatric opinion and to credit, instead,the contrary views of the People's expert. Were this case to be returned for trial, a jurymight well reach the same conclusions set forth in the majority decision, finding thatdefendant's behavior arose from rational calculation rather than increasing desperationand loss of control. Nonetheless, however well founded such a conclusion may appear tobe, the process of evaluating, interpreting and assigning weight to conflicting evidence isproperly reserved to the jury; in light of the stringent standards governing our review,and upon this record, I do not find that the evidence before us permits a judicialdetermination. Our task on this appeal is not to engage in weighing the evidence, but islimited instead to determining whether the evidence controverting the extreme emotionaldisturbance defense is so overwhelming that there is no reasonable possibility that theconstitutional error affected the jury's rejection of that defense (see People vPatterelli, 68 AD3d at 1154-1155). Here, for this Court to reach this conclusion as amatter of law—in effect, rejecting the opinion of defendant's expert as unworthyof belief—usurps the jury's prerogative to determine whether, in its discretion, thedefense of extreme emotional disturbance is applicable (see People v Gabriel,241 AD2d 835, 836 [1997], lv denied 91 NY2d 892 [1998]). Considering all ofthe evidence and, in particular, the conflicting expert opinions, I cannot conclude that theerror of permitting the People to use defendant's postarrest silence to suggest that he hadfalsified his affirmative defense was harmless beyond a reasonable doubt (see Peoplev Murphy, 51 AD3d at 1058; People v Stewart, 20 AD3d at 770-771;People v Gabriel, 241 AD2d at 836; see also People v Theodore, 113 AD3d 703, 704 [2014]; People v McArthur, 101 AD3d752, 752-753 [2012], lv denied 20 NY3d 1101 [2013]). Accordingly, Iwould reverse defendant's murder convictions in the interest of justice and remit thematter for a new trial on those charges.
Ordered that the judgment is affirmed.
Footnote 1:Defendant's emotionalstate was a key issue at trial and, while the challenged testimony indeed violateddefendant's postarrest right to remain silent, such testimony also established thatdefendant entertained thoughts of suicide in the days after he killed Howard and Carter(including during the course of the negotiations leading to his eventual surrender) andthat he "broke down" more than once while being transported from Broome County toClinton County. Indeed, defense counsel established through his cross-examination ofState Police Investigator Scott Weightman that defendant was upset and seeminglysuicidal following his apprehension and, further, that Weightman "had no reason tosuspect that [defendant] was faking" his emotional state at that time. Through this samewitness, defense counsel also was able to imply that defendant's failure to state that "hesnapped or lost it" at the time of the killings stemmed from the fact that defendantadmittedly was not questioned regarding the underlying crimes after he was given hisMiranda warnings and, hence, was not afforded an opportunity to explain hisemotional state. With the benefit of hindsight, reasonable minds arguably could differ asto the manner in which defense counsel approached such testimony. That said, counsel'stactical decision in this regard does not, to our analysis, constitute ineffective assistanceof counsel, nor do we find the underlying error to be sufficient to warrant this Court'sintervention under CPL 470.15 (3) (c) and (6).
Footnote 2:Unless otherwise noted,all of these messages were left as voice mails on Howard's cell phone. A summary of themore pertinent voice mails follows.
Friday, January 29, 2010
1:32 p.m.
"Are you with him? Are you with him right now? Are you going to call me back?Call me back immediately."
1:34 p.m.
"You gotta call me back."
Saturday, January 30, 2010 (Howard'sbirthday)
10:05 a.m.
"I'm asking you for five minutes."
9:02 p.m.
"I hope he didn't take you out on your birthday. Oh man. Somebody I knew called meand told me who this guy is."
9:16 p.m.
"Alright, please give me a call. What's going on?"
9:54 p.m.
"I know you're eating, but please give me a call before you leave. . . .[P]lease just call me before you leave the restaurant, OK?"
11:11 p.m.
"I, I know you're out with [Carter]. Because . . . I called his house to seeif he was home. . . . I had to try to find out if you were out with him becauseyou told me you were going to be out with the girls. You lied to me."
11:27 p.m.
"You don't know this guy. You're head over heels for him, but
. . . I don't know what he's so special for."
11:50 p.m.
"Ummm, the person who told me . . . who [Carter] is told me where helives . . . told me quite a bit about him. . . . [I]f you guys don'thave the courtesy to return my phone calls . . . I don't know if you're up atChazy Lake [Carter's residence] or not, but I'll drive up there and I will wait and [I will]talk to him. I'm not upset with [Carter], . . . [b]ut somebody better give me acall. . . . If I don't get a call, I'm on my way to Chazy Lake."
Sunday, January 31, 2010
12:02 a.m. (message on Carter's answering machine)
"If you're any type of a man, you will return my phone call. . . . I willeventually talk to you . . . I will look for you, I will find you, I will go sit infront of your house in Chazy Lake if I gotta."
12:03 a.m.
"I just called [Carter]. I left him a message. OK, it wasn't threatening. . . [b]ut one of you, if you're together, one of you has got to callme. . . . [T]his is wrong. . . . I'm not ready to give up on youyet. . . . Ah, but you know, if I gotta drive up to Chazy Lake. I don't wanna,you're probably not up there, but at least I'll meet him, because I'll sit there for three daysif [that's what] it takes, you know I will. . . . God I hope you're not up at hishouse."
12:27 a.m.
"I'm still pretty calm right now. But I'm, I'm getting really anxious because you're notreturning my calls. And . . . it's . . . just gonna make itworse. . . . I'm still OK right now. . . . I don't really feel likedriving up there, but if I gotta go and sit there, look I will. I know what his vehicle lookslike."
12:48 a.m.
"I've been driving around looking for you . . . I don't know if you'respending the weekend with him. . . . Come on, give me a break. Ah, I'm notgoing to go away. . . . I'm really starting to get frustratedtonight. . . . [Y]ou don't have to treat me like this."
1:36 a.m. (message on Carter's answering machine)
"[Carter], I know you're getting these messages. I'm still looking for my girlfriend. Istarted out fairly calm, right now, I'm . . . starting to get a little frustrated. Iknow she's telling you not to call me, but she's also watching how you're handling thissituation."
Footnote 3:A sergeant with the StatePolice testified that the shell casings would remain in the revolver after firing; as a result,one would have to open the cylinder and manually eject the casings.
Footnote 4:In addition to the loadedrevolver, the survival backpack included food, handwarmers, emergency blankets andtoilet paper, as well as a poncho, flashlight, cell phone battery, ski mask, hat and foldingknife.