| People v Ramos |
| 2015 NY Slip Op 08001 [133 AD3d 904] |
| November 5, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vIvan Ramos, Also Known as Big Man, Appellant. |
Joseph Nalli, Fort Plain, for appellant.
James E. Conboy, District Attorney, Fonda (Sarah J. Leszczynski of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Montgomery County(Catena, J.), rendered March 20, 2013, upon a verdict convicting defendant of the crimesof murder in the first degree (two counts) and criminal possession of a weapon in thethird degree.
Following the brutal killing of William McDermott and Cheryl Goss Faboskay atMcDermott's apartment in Montgomery County, defendant was indicted on two countseach for the crimes of murder in the first degree and criminal possession of a weapon inthe third degree. A jury thereafter found defendant guilty of both counts of murder andone count of criminal possession of a weapon and he was sentenced, as a second felonyoffender, to an aggregate term of life in prison without the possibility of parole.Defendant now appeals and we affirm.
As an initial matter, defendant's claim that his convictions were not supported bylegally sufficient evidence is unpreserved, as his motion to dismiss at the close of thePeople's case was not based on the grounds that he has now raised on appeal (see People v Hawkins, 11NY3d 484, 492 [2008]; People v Hook, 80 AD3d 881, 882 [2011], lvdenied 17 NY3d 806 [2011]). In any event, because defendant also contends that hisconvictions are against the weight of the evidence, we remain obligated to nonethelessconduct "an evaluation of whether all elements of the charged crime[s] were provenbeyond a reasonable doubt at trial" (People v Robinson, 123 AD3d 1224, 1225 [2014], lvdenied 25 NY3d 992 [2015] [internal quotation marks and [*2]citations omitted]; see People v Danielson, 9 NY3d 342, 348-349 [2007]). Indetermining whether the verdict is against the weight of the evidence, we undertake toweigh the probative force of conflicting testimony and the strength of conflictinginferences (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Salce, 124 AD3d923, 925-926 [2015], lv denied 25 NY3d 1207 [2015]).
For defendant to be found guilty of criminal possession of a weapon in the thirddegree, the People were required to prove that defendant possessed a "dangerous ordeadly instrument or weapon with intent to use the same unlawfully against another"(Penal Law § 265.01 [2]) and that he had previously been convicted of acrime (see Penal Law § 265.02 [1]). Next, as to the charges ofmurder in the first degree, the People were required to prove that, "[w]ith intent to causethe death of another person, [defendant] cause[d] the death of such person or of a thirdperson . . . and[,] as part of the same criminal transaction, . . .defendant, with intent to cause serious physical injury to or the death of an additionalperson or persons, cause[d] the death of an additional person or persons; provided,however, the victim is not a participant in the criminal transaction" (Penal Law§ 125.27 [1] [a] [viii]). "Criminal transaction," in turn, is defined as"conduct which establishes at least one offense, and which is comprised of two or moreor a group of acts either (a) so closely related and connected in point of time andcircumstance of commission as to constitute a single criminal incident, or (b) so closelyrelated in criminal purpose or objective as to constitute elements or integral parts of asingle criminal venture" (CPL 40.10 [2]; see People v Duggins, 3 NY3d 522, 527 [2004]).
Here, several individuals—including Miguel Quinones, Edward Fisher, CraigMcCormick and Deborah Baker—testified that they saw defendant atMcDermott's apartment on the evening of March 1, 2012. Quinones, Fisher andMcCormick each testified that defendant did not have any cuts or scratches on his face atthat time, and Baker testified that defendant was wearing a camouflage coat, T-shirt andgray sweatpants. Explaining that he was expecting a visit from a woman, McDermottasked Fisher and defendant to leave his apartment at approximately 2:00 a.m. on March2, 2012.
Shortly thereafter, at approximately 3:00 a.m., defendant arrived at the home of TerryDallas Reedy, where he asked to use the telephone to call McDermott. Reedy allowedhim to do so and, after the phone call ended, defendant left Reedy's home. About 30minutes later, when he was already in bed, Reedy heard McCormick—who wasalso at Reedy's house—open the door. When Reedy asked McCormick where hewas going, McCormick stated that he was going home. Reedy testified that he then fellasleep, but was later awoken by someone banging on his door. Upon answering the door,Reedy found McCormick, who he described as white as a ghost, screaming "they'redead" repeatedly.
McCormick testified that, after leaving Reedy's home, he went back to McDermott'sapartment and, upon arriving, noticed a lot of blood in the hallway leading toMcDermott's front door. McCormick then tried to gain access to the apartment and,finding the door locked, went around to the back door where he noticed one set offootprints in the snow leading toward the street. McCormick averred that the back doorwas open, so he entered the apartment and saw large amounts of blood and McDermottand a woman laying on the floor. McCormick testified that he then locked the back doorand used a pot holder to open the front door in an effort to avoid touching the blood. Hethen went through the alleyway next to the apartment to see if anyone was there and,finding no one, proceeded back to Reedy's house, dropping the pot holder in the street onhis way.
Richard Haver, who lived in the apartment directly across the hall from McDermott's[*3]apartment, testified that he stopped home from workat approximately 2:00 a.m. and the building was quiet at that time. Haver stated that hewent back to work a short time later and that, when he returned home at the end of hisshift at approximately 5:25 a.m., he saw blood on the walls and floor of the hallway andheard the television playing from inside McDermott's apartment. Haver then called thepolice.
Elvira Ramos, defendant's sister, testified that she saw defendant on March 1, 2012and that he was wearing a camouflage jacket when he arrived at her home at around 5:00a.m. on the morning of March 2, 2012. Mario Rios, who was also present at Ramos'home on the morning in question, testified that he heard defendant using the bathroomand that, after defendant left, he saw water and blood in the bathroom, which he cleanedup. Both Ramos and defendant's wife testified that defendant had scratches on his face,but that they were a week old and that they were caused by his wife hitting him with alamp.
Israel Toro, an investigator with the State Police, testified that he intervieweddefendant and that defendant stated that he left his residence at approximately 5:00 p.m.on March 1, 2012 and arrived at McDermott's apartment around 9:00 p.m. Defendanttold Toro that he left McDermott's apartment at approximately 2:30 a.m. and went toReedy's house, where he called McDermott. Toro testified that defendant stated that hethen left Reedy's house and went home, stopping to talk with two people on the way.Toro stated that defendant had indicated that he was wearing a black polo, boots, a jacketand blue jeans and that he had previously sold his camouflage jacket. Defendant latermodified his story, telling Toro that he had only sold the insert to the camouflage jacketafter leaving McDermott's apartment on the morning of March 2, 2012. Toro stated thathe asked defendant if he knew why he was being interviewed and defendant replied thathe did not. However, when Toro told defendant that it was in relation to a homicideinvestigation, Toro stated that defendant "became very emotional, teared up, and startedtalking about [McDermott]," despite the fact that Toro had not informed defendant of thevictims' names. Defendant also told Toro that he kept personal items at McDermott'sapartment, including several knives. John Thomas, a detective with the AmsterdamPolice Department, explained that surveillance videos of the area where these events tookplace generally corroborated McCormick's testimony.
Michael Sikirica, a forensic pathologist who performed autopsies on the victims,testified that both victims were stabbed several times and that each had several defensivewounds. Sikirica opined that McDermott's death was caused by asphyxia andhemorrhaging and that Faboskay's death was caused by "multiple stab and incise woundswith perforations of the lungs and transection of the left subclavian vein." A forensicscientist testified that a sneaker recovered from defendant's home tested positive forblood. However, another forensic scientist testified that the blood did not contain theDNA of either of the victims. Defendant's DNA was found on several items that were inMcDermott's apartment. Additionally, two forensic technicians with the State Policetestified that defendant's bloody palm print was found in McDermott's apartment and thata shoe print matching the shoe recovered from defendant's home was found onFaboskay's coat. Finally, evidence was submitted demonstrating that defendant hadpreviously been convicted of a crime.
In our view, the evidence supports the jury's determination that defendant is guilty ofboth counts of murder in the first degree, as well as criminal possession of a weapon inthe third degree. According deference to the jury's apparent acceptance of McCormick'stestimony and the forensic evidence, we cannot agree that the verdict was against theweight of the evidence.
Turning to defendant's challenge to County Court's Sandoval ruling, we notethat the [*4]court permitted the People to inquireregarding only five of defendant's prior convictions and further limited the scope ofinquiry by permitting inquiry into only the date and the number of felony convictionswith respect to his 2012 burglary convictions. Inasmuch as the commission of crimesinvolving dishonesty or untrustworthiness is particularly probative of credibility and thecourt properly weighed the probative value of the prior convictions against the risk ofprejudice to defendant, we cannot say that the Sandoval compromise constitutedan abuse of discretion (see People v Williams, 56 NY2d 236, 237-239 [1982];People v Sandoval, 34 NY2d 371, 373-374, 376-377 [1974]; People v Fomby, 101 AD3d1355, 1357 [2012]; People v Lemke, 58 AD3d 1078, 1078-1079[2009]).
Nor can we agree that defendant's sentence is harsh or excessive. A sentence thatfalls within the permissible statutory range will not be disturbed unless it can be shown" 'that the sentencing court abused its discretion or extraordinary circumstancesexist warranting a modification' " (People v Lancaster, 121 AD3d 1301, 1304 [2014], lvdenied 24 NY3d 1121 [2015], quoting People v Cruz, 53 AD3d 986, 986 [2008]). Here, defendantwas sentenced to an aggregate term of life in prison without the possibility of parole,which sentence he concedes is within permissible statutory range (see Penal Law§§ 70.00 [5]; 125.27, 265.02). The record before us demonstrates thatdefendant acted with a shocking and profound level of violence when he took the lives ofMcDermott and Faboskay. Sikirica testified that it likely took defendant 15 to 30 minutesto inflict the injuries that ultimately resulted in the victims' deaths. Further, crime sceneevidence and a recording of a 911 call[FN*] revealed that, when McDermottmanaged to escape the apartment, defendant hunted him down and dragged him backinside to his death. In light of this extreme violence and defendant's lack of remorse,defendant's sentence does not constitute an abuse of County Court's discretion and thereare no extraordinary circumstances warranting a modification thereof (see People v Shoemaker, 119AD3d 1073, 1077 [2014], lv denied 25 NY3d 992 [2015]; People v Callicut, 101 AD3d1256, 1264-1265 [2012], lv denied 20 NY3d 1096 [2013]; People v Muller, 72 AD3d1329, 1336 [2010], lv denied 15 NY3d 776 [2010]).
Finally, defendant contends that he was denied the effective assistance ofcounsel—a claim that is premised, in large measure, upon counsel's failure torequest a circumstantial evidence charge and to discuss in his closing statementunidentified DNA found at the crime scene. To establish a claim of ineffective assistanceof counsel, defendant "is required to demonstrate that he was not provided meaningfulrepresentation and that there is an absence of strategic or other legitimate explanationsfor counsel's allegedly deficient conduct" (People v McRobbie, 97 AD3d 970, 972 [2012], lvdenied 20 NY3d 934 [2012] [internal quotation marks and citations omitted]; see People v Caban, 5 NY3d143, 152 [2005]). Based upon our review of the record as a whole, we are satisfiedthat defendant received meaningful representation. Among other things, trial counselmade appropriate pretrial motions, cross-examined the People's witnesses, madeappropriate objections and gave cogent opening and closing statements. Inasmuch asdefendant failed to demonstrate a lack of strategic or other legitimate explanations forcounsel's alleged insufficiencies, we cannot agree that he was deprived of the effectiveassistance of counsel.
Egan Jr., J.P., Rose and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:McDermott was able tocall 911 from his cellular telephone but, due to his injuries, was unable to speak to theoperator.