| People v Novak |
| 2017 NY Slip Op 01913 [148 AD3d 1352] |
| March 16, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Paul A.Novak, Appellant. |
Theodore J. Stein, Woodstock, for appellant.
James R. Farrell, District Attorney, Monticello (Stephen F. Lungen of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered January 31, 2014, upon a verdict convicting defendant of the crimes of murder in thefirst degree, murder in the second degree (two counts), burglary in the second degree, arson in thethird degree, grand larceny in the second degree and insurance fraud in the second degree (twocounts).
This appeal arises from a December 2008 incident where defendant killed his estranged wife(hereinafter the victim) and burned her house to the ground. An initial investigation of thevictim's death did not lead to criminal charges against defendant inasmuch as defendant's thengirlfriend[FN1] provided analibi for defendant and the victim's death was deemed accidental. Years later, however, thegirlfriend confessed to law enforcement that her alibi was fabricated and that defendant killed thevictim. In October 2012, defendant was charged in a multi-count indictment with murder in thefirst degree, murder in the second degree (two counts), burglary in the second degree, arson in thethird degree, grand larceny in the second degree and insurance fraud in the second degree (twocounts). After a lengthy jury trial, defendant was found guilty on all counts. County Courtthereafter sentenced defendant to a controlling term of life in prison without parole. Defendantappeals. We affirm.
[*2] Defendant challenges thelegal sufficiency of the evidence as it pertains to the charge of burglary in the second degree(count four) on the basis that he was privileged to enter the marital residence. To that end,defendant contends that because the charge for burglary in the second degree cannot stand, thecharge of murder in the first degree (count one) and the felony murder charge (count three)should likewise be dismissed. These legal sufficiency arguments, however, are unpreserved forreview in the absence of a trial motion to dismiss premised on the specific grounds now beingraised on appeal (see People vAndrews, 127 AD3d 1417, 1419 [2015], lv denied 25 NY3d 1159 [2015]).
Defendant also contends that the conviction for murder in the second degree (count two) wasnot supported by legally sufficient evidence. Under a legal sufficiency analysis, "we determinewhether, viewing the evidence in a light most favorable to the People, the People established itsburden of proving each element of the charged crime beyond a reasonable doubt" (People v Green, 121 AD3d 1294,1294 [2014] [citations omitted], lv denied 25 NY3d 1164 [2015]; see People v Taylor, 134 AD3d1165, 1166 [2015], lv denied 26 NY3d 1150 [2016]). As relevant here, a defendantis guilty of murder in the second degree if he or she causes the death of a person with the intentto do so (see Penal Law § 125.25 [1]).
In light of defendant's further assertion that the conviction for murder in the second degree(count two) is against the weight of the evidence and, to the extent that defendant raises a similarcontention with respect to the convictions only for murder in the first degree (count one) andburglary in the second degree (count four), we review the evidence adduced as to each element ofthe crime for which defendant was convicted and, where a contrary result would not have beenunreasonable, we "weigh the relative probative force of conflicting testimony and the relativestrength of conflicting inferences that may be drawn from the testimony" (People vBleakley, 69 NY2d 490, 495 [1987] [internal quotation marks and citation omitted]; People v Ackerman, 141 AD3d948, 949 [2016]; People vBriggs, 129 AD3d 1201, 1202 [2015], lv denied 26 NY3d 1038 [2015]).
The trial evidence reveals that defendant and the victim, with whom he had two children,separated in January 2008. They owned a house in Sullivan County but, according to theseparation agreement, the victim was given sole occupancy of it. The separation agreement alsoprovided that "[n]either party will attend the other's home . . . without invitation orapproval." In September 2008, defendant and his girlfriend started living together in NassauCounty. Around the same time, defendant's relationship with the victim significantly deterioratedand the girlfriend testified that defendant told her that "he needed to kill [the victim]."Defendant's coworker likewise testified that defendant expressed similar thoughts to him to theeffect of "putting her out of the picture" and, in early December 2008, defendant told hiscoworker that he wanted him to go with him to the victim's house and "take care" of her.
The girlfriend testified that a week before the incident in question, she went with defendantto the victim's house to move some of defendant's personal items from out of the basement. Shefurther stated that defendant wanted to leave the Bilco doors leading to the basement unlocked sothat he could gain access into the house, and that his plan was to use chloroform on the victim toknock her out, light the victim's house on fire and have her die of carbon monoxide poisoning sothat her death would seem like an accident. On the night of December 12, 2008, defendant madethe chloroform, which he researched how to do through an Internet search. Defendant's children,who were in Nassau County at the time pursuant to a custody arrangement, were given Benadrylto ensure that they slept through the night. Defendant's coworker arrived and the girlfriend statedthat defendant left his cell phone in Nassau County to avoid being tracked.
[*3] Defendant's coworker testified that he drove with defendantto Sullivan County in a vehicle registered to the coworker's girlfriend. According to thecoworker, defendant told him not to bring an E-ZPass tag. While en route, defendant and hiscoworker stopped at a Walmart where defendant purchased duct tape and gloves.[FN2] The coworker stated that, uponarrival in Sullivan County, defendant exited the vehicle, put on scrubs and the gloves and tapedhis wrists and ankles. Defendant proceeded to the victim's house while the coworker remained inthe vehicle. Defendant returned approximately 45 to 55 minutes later and told the coworker, "It'sdone." Defendant informed his coworker that the chloroform did not work and that he strangledher. They waited for approximately 5 to 10 minutes when defendant exclaimed that the fire hadnot started. Defendant went back to the victim's house and, after returning to his coworker,defendant said, "It's now lit." Defendant and his coworker drove back to Nassau County bytaking a different route than how they drove up to Sullivan County. The coworker further statedthat they stopped at an abandoned gas station where defendant got rid of the gloves, duct tape andscrubs. When they approached New York City, they traversed the lower level of the GeorgeWashington Bridge.[FN3]
The girlfriend testified that, upon defendant's arrival back in Nassau County, defendant toldher that the victim was dead and she noticed a long scratch on defendant's neck that was not therewhen he left the previous evening. She learned from defendant that he had entered the victim'shouse through the Bilco doors, but that the dog started barking and the victim spotted defendant.Defendant tried to use the chloroform on the victim but it did not work. The girlfriend furthertestified that defendant told her that he and the victim had a "difficult struggle" for approximately45 minutes and that the victim begged for her life. Defendant ultimately used the hood of thevictim's sweatshirt to strangle her. Defendant waited until the victim stopped breathing to ensurethat she died. Defendant then obtained a blowtorch from the garage and set the house onfire.
In addition to the girlfriend's testimony and that of defendant's coworker, the People adducedproof of defendant's financial problems, how defendant fraudulently obtained monetary proceedsfrom the victim's life insurance policies and how defendant personally spent such proceeds eventhough some of it was paid for the benefit of the children. An arson investigator testified that hethought the fire was suspicious and concluded that the victim was dragged to her position whereshe was ultimately discovered. There was testimony from a pathologist indicating that the victimdied from asphyxia. The low carbon monoxide levels in the victim's blood and the lack of soot inher airways also suggested that the victim died prior to the fire. Based on the foregoing andviewing the evidence in a light most favorable to the People, we find that there was legallysufficient evidence to support the conviction for murder in the second degree as charged in counttwo of the indictment (see People vStanford, 130 AD3d 1306, 1308 [2015], lv denied 26 NY3d 1043 [2015]).
We are also satisfied that the conviction for murder in the second degree was in accord withthe weight of the evidence. While defendant challenges the credibility of his girlfriend and [*4]coworker based upon their mental health issues, such issues, as wellas the benefits they received in exchange for testifying against defendant, were fully explored attrial. Contrary to defendant's contention, any inconsistencies between the accounts provided bydefendant's girlfriend and his coworker did not render their testimony incredible as a matter oflaw, but instead presented a credibility issue for the jury's resolution (see People v Gunn, 144 AD3d1193, 1194 [2016], lv denied 28 NY3d 1145 [2017]; People v Gamble, 135 AD3d 1078,1079 [2016], lv denied 27 NY3d 997 [2016]). According deference to the jury'sassessment of the credibility of the witnesses, we conclude that the verdict convicting defendantof murder in the second degree (count two) was not against the weight of the evidence (see People v Wlasiuk, 136 AD3d1101, 1102 [2016], lv denied 27 NY3d 1009 [2016]; People v Griffin, 128 AD3d 1218,1220 [2015], lv denied 27 NY3d 998 [2016]; People v Rodriguez, 121 AD3d 1435, 1441 [2014], lvdenied 24 NY3d 1122 [2015]).
To the extent that defendant contends that the conviction for murder in the first degree wasagainst the weight of the evidence with respect to the intent element, we find such contention tobe without merit. The People's theory was, and the trial evidence demonstrates, that defendant'sintent to commit a crime for the purpose of the burglary in the second degree charge was separateand apart from the intent to kill the victim. In this regard, for the burglary in the second degreecharge, the People satisfied the intent element by demonstrating that defendant entered thevictim's house to render her unconscious by using chloroform and then to burn down the house(cf. People v Womack, 143 AD3d1171, 1172 [2016], lv denied 28 NY3d 1151 [2017]). Furthermore, when defendant'suse of chloroform did not work, as discussed, the People, through the testimony of defendant'sgirlfriend, his coworker and his coworker's girlfriend, demonstrated that defendant strangled thevictim with the intent to cause her death (see People v Cherry, 46 AD3d 1234, 1236-1237 [2007], lvdenied 10 NY3d 839 [2008]). As such, we are satisfied that the conviction for murder in thefirst degree (count one) was supported by the weight of the evidence.
To the extent that defendant argues that the conviction for burglary in the second degree(count four) was against the weight of the evidence because he was privileged to enter thevictim's house, the trial evidence reveals that after defendant and the victim separated, the victimhad her friend change the locks to the house and defendant had not resided there for almost oneyear. Moreover, not only did the separation agreement give the victim the right of sole occupancyof the house, it also required that defendant have the victim's consent before he entered thehouse. Under these circumstances, even though defendant co-owned the house and was stilllegally married to the victim, "an owner can properly be convicted of burglarizing premises he[or she] owns but which are occupied by another" (People v Glanda, 5 AD3d 945, 950 [2004], lv denied 3NY3d 640 [2004], cert denied 543 US 1093 [2005]). Accordingly, we conclude that theconviction for burglary in the second degree was supported by the weight of the evidence.
We reject defendant's argument that the testimony of his girlfriend and coworker was notsufficiently corroborated. Corroborative evidence is sufficient "if it tends to connect thedefendant with the commission of the crime in such a way as may reasonably satisfy the jury thatthe accomplice[s] [are] telling the truth" (People v Reome, 15 NY3d 188, 192 [2010] [internal quotationmarks and citation omitted]; see Peoplev Miles, 119 AD3d 1077, 1079 [2014], lv denied 24 NY3d 1003 [2014]). Here,in addition to the medical evidence demonstrating that the victim died prior to the fire, there wasdocumentary evidence of a Walmart receipt reflecting the purchase of gloves and duct tape andan E-ZPass account statement showing that the vehicle used by defendant crossed the GeorgeWashington Bridge during the morning of December 13, 2008. Corroboration also came from thestatements and testimony of the girlfriend of defendant's [*5]coworker, who stated that, a week after the incident, defendantadmitted to her that he had a struggle with the victim and that he set the house on fire. Based onthe foregoing, we find no merit in defendant's corroboration argument (see People v Malak, 117 AD3d1170, 1172-1173 [2014], lv denied 24 NY3d 1086 [2014]; People v Berry, 78 AD3d 1226,1227 [2010], lv denied 16 NY3d 828 [2011]).
Defendant's remaining contention has been examined and is found to be without merit.
Garry, J.P., Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The relationship betweendefendant and his then girlfriend ended around February 2011.
Footnote 2:A Walmart receipt showing apurchase of duct tape and gloves was admitted into evidence.
Footnote 3:The coworker testified that,because of construction, there were no toll booth operators and drivers were advised that theywould be billed for the toll through E-ZPass.