| People v Vega |
| 2019 NY Slip Op 01677 [170 AD3d 1266] |
| March 7, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Gabriel Vega, Appellant. |
Paul J. Connolly, Delmar, for appellant.
Mary Pat Donnelly, District Attorney, Troy (Jacob B. Sher of counsel), for respondent.
Erin Beth Harrist, New York Civil Liberties Union, New York City, and Sarah SamuelsWheeler, Reproductive Justice Clinic New York University School of Law, New York City,amici curiae.
Rumsey, J. Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.),rendered August 25, 2016, upon a verdict convicting defendant of the crimes of manslaughter inthe first degree, arson in the second degree and abortion in the first degree.
On April 3, 2014, firefighters responded to an apartment fire in the City of Troy, RensselaerCounty, where they found the victim's badly-burned body. The victim was in the final week of afull-term pregnancy and had been strangled—which also resulted in the death of herunborn child—before her body was doused with gasoline and set on fire. Defendant wasindicted for the crimes of murder in the first degree, murder in the second degree, burglary in thefirst degree, burglary in the second degree, arson in the second degree, arson in the third degreeand abortion in the first degree. Prior to trial, defendant moved, pursuant to CPL 210.30 (2), forCounty Court to review the grand jury minutes to determine whether the charges were supportedby legally sufficient evidence. Upon review, County Court dismissed the charges of murder in thefirst degree, burglary in the first degree and burglary in the second degree and determined that thegrand jury proceeding was not otherwise defective.
At the ensuing jury trial, defendant was acquitted of murder in the second degree andconvicted of manslaughter in the first degree, which County Court had charged as a lesserincluded offense of murder in the second degree, arson in the second degree, arson in the thirddegree and abortion in the first degree. At sentencing, Supreme Court dismissed the charge ofarson in the third degree, as a lesser included offense of arson in the second degree, andsentenced defendant to two consecutive prison terms of 25 years for his conviction ofmanslaughter in the first degree and arson in the second degree, to be followed by five years ofpostrelease supervision, and a concurrent prison term of 2
Defendant first argues that the verdict was not supported by legally sufficient evidence andwas against the weight of the evidence. He specifically contends that the evidence was legallyinsufficient to establish that he was the individual who committed the three crimes and, further,that the evidence was legally insufficient to establish that he committed an abortional act, arequired element of his conviction of abortion in the first degree. Defendant's legal sufficiencychallenges are unpreserved for our review because defense counsel's motion for a trial order ofdismissal was not specifically directed at these alleged errors (see People v Gill, 168 AD3d 1140, 1140 [2019]; People v Green, 141 AD3d 1036,1037 [2016], lv denied 28 NY3d 1072 [2016]). Nevertheless, in conducting our weight ofthe evidence review, we must determine whether each element of the crimes for which defendantwas convicted was proven beyond a reasonable doubt (see People v Gill, 168 AD3d at1140).
"When undertaking a weight of the evidence review, we must first determine whether, basedon all the credible evidence, a different finding would not have been unreasonable and thenweigh the relative probative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony to determine if the verdict is supported by theweight of the evidence. When conducting this review, we consider the evidence in a neutral lightand defer to the jury's credibility assessments" (id. at 1140-1141 [internal quotationmarks and citations omitted]). As relevant here, "[a] person is guilty of manslaughter in the firstdegree when . . .[,] [w]ith intent to cause serious physical injury to another person,he [or she] causes the death of such person or of a third person" (Penal Law§ 125.20 [1]). "A person is guilty of arson in the second degree when he [or she]intentionally damages a building . . . by starting a fire, and when (a) another personwho is not a participant in the crime is present in such building . . . at the time, and(b) the defendant knows that fact or the circumstances are such as to render the presence of sucha person therein a reasonable possibility" (Penal Law § 150.15).
At trial, Theresa Rotsford testified that she was with the victim on April 3, 2014, the day shedied, from approximately 8:00 a.m. to 9:00 a.m. and again from 12:00 p.m. to 4:30 p.m. GinellySantana testified that she was alone with the victim at the victim's apartment on the evening shedied from approximately 8:00 p.m. to 9:45 p.m., and the apartment door was unlocked when sheleft. The victim's next-door neighbor, Jeffrey Cook, testified that he was in his residence atapproximately 11:00 p.m. on April 3, 2014 when he "heard a loud bang noise" and immediatelylooked outside to see smoke emanating from a window in the victim's building. Cook exited hishouse and, as he began warning other residents to exit both buildings, the male driver of a vehiclethat was stopped in the street asked Cook if he was looking for a man carrying a red duffel bag.Nicholas Cook, who lived with Jeffrey Cook, also testified that he heard a "loud bang" frombetween his building and the victim's building next door. When Nicholas Cook looked outside,he saw that a passing vehicle had stopped and he also saw a skinny "Spanish" or "ethnic" man"getting ready to run but at the same time [was] still watching the [victim's] house." When theman began to run, the Cooks pursued him in a pickup truck to no avail. Daisy Harmon, who livedin an apartment in the same building as the victim, was at home when she also heard an"explosion" around 11:00 p.m. and immediately noticed smoke in her kitchen. She went out onher balcony and saw the Cooks outside, one of whom yelled for her to leave the house. Harmonimmediately went to the victim's apartment and discovered that the door was unlocked, whichshe found unusual because the door was "never unlocked." Harmon briefly entered the victim'sapartment, but was forced to exit quickly due to "really heavy smoke." After she exited, she saw"heavy flames and smoke coming out of [the victim's] bedroom window."
The People called two additional witnesses who claimed to have seen a man running fromthe vicinity of the victim's apartment near the time the fire was discovered. Edward Shorttestified that he was driving near the victim's apartment at approximately 11:00 p.m. on that nightwhen he saw a "thin, light skinned male running across the street" wearing a dark, hoodedsweatshirt and carrying a Nike, pull-string bag. Short recalled that the man "was runningextremely hard, like he was trying to get away from something or something was threateninghim," and that he then saw smoke in the vicinity of the victim's building. According to Short, theman disappeared near a restaurant across the street from the victim's building. Short thereafterreported the fire to a nearby police officer. Corrine Tario similarly testified that she was drivingnear the victim's building around 11:00 p.m. when she nearly hit a man wearing a red hat andwhite T-shirt who was carrying a red backpack as he suddenly darted in front of her vehicle.Tario averred that the man stopped and looked at her "for just a brief second" and that, given thestreet lights and her vehicle lights, she was able to see his face. Tario identified that man asdefendant. Following this incident, Tario continued driving and heard two, simultaneous"booms." After driving approximately eight blocks further, she stopped to tell two police officersthat she believed someone was shot near the restaurant across from the victim's building.
Thomas Miter, a member of the Troy Fire Department who responded to the fire at thevictim's apartment, testified that he located the victim's badly-burned body on the floor of abedroom. Thomas Daus, a certified fire investigator, testified that his investigation establishedthat an ignitable fluid was used to intentionally start the fire in the bedroom where the victim'sbody was found. He further concluded that the heat generated by the fire caused the windows tofail, creating the explosive sound that several witnesses described, and opined that this explosionwould have occurred less than three minutes after the fire began. In addition, Daus noted that,before the fire began, the fire alarms had been disabled at a switch box located in the basement.Frank Padula, a forensic scientist for the State Police, testified that samples of the ignitable liquidtaken from the victim's bedroom were identified as gasoline.
Michael Sikirica, the Rensselaer County Medical Examiner, who performed an autopsy onthe victim, testified that the victim had been so severely burned that she could not be visuallyidentified and that she was pregnant with a fetus who was at least 35 weeks old. Sikiricaconcluded that the victim died from "asphyxia due to strangulation" before the fire began becauseher lungs were "totally normal," her toxicology results showed no carbon monoxide in her bloodand the soft tissue on her neck showed signs of hemorrhaging consistent with strangulation. Healso concluded that the fetus, which appeared to be otherwise healthy, died from a lack of oxygenafter the victim died. Daniel Myers, a second forensic scientist for the State Police, testified thathe had determined, based on DNA samples taken from the fetus and defendant, that there was "agreater than 99.99 percent probability" that defendant was the father of the unborn child. He alsoopined that vaginal swabs taken from the victim contained defendant's DNA.
Kimberly Padin Virola testified that she had been in a three-year relationship with defendantthat ended shortly before the victim's death and that Virola and defendant had a child together.Virola learned on the day that the victim died that defendant had impregnated the victim. Virolaand the victim then had several telephone conversations during which they screamed at eachother. Virola also sent the victim messages on social media the day she died, alleging thatdefendant was the father of her unborn child and threatening to fight her after the baby was born.In response to these messages, the victim denied that defendant was the father and ultimatelyblocked Virola from messaging her on that social media platform. Virola testified that defendantcalled her shortly after 11:00 p.m., sounding "like he was out of breath, like he was running," andstating that "he needed to come over, that he had done something." Virola denied defendant'srequest to come to her home and hung up on him. She likewise denied his request when he calledagain approximately 20 minutes later. Notably, she further testified that approximately twomonths after the fire, defendant confessed that he had been in the victim's apartment on the nightof the fire and that, as they argued about Virola, he choked the victim and, upon realizing that shewas dead, he poured gasoline on her and ignited a fire. She testified that defendant told her thathe had obtained the gasoline from his garage and that he transported it to the victim's apartmentin a two-liter soda bottle that he had placed in his book bag.
Jonathan Becker, a sergeant with the Troy Police Department, interviewed defendant threetimes after the victim's death. During the first interview, defendant admitted that he could be thefather of the victim's unborn child, but claimed that he had not seen the victim in two months andthat he had never asked her to get an abortion. Defendant also denied ever having been at thevictim's apartment. During the second interview, defendant consented to DNA testing for thepurpose of determining whether he was the father of the unborn child. Defendant also stated thatthe last time he saw the victim was at least a month before she died, and that, although he hadrequested that the victim get an abortion, he realized that she was unwilling to do so. During thethird interview, which was recorded and played for the jury, defendant continued to assert that hedid not see the victim on the day that she died. Police then confronted him with evidence that hissperm was discovered inside the victim, which would indicate that he had had sex with herwithin six to eight hours before she died. After continuing to deny having had sex with the victimthat day, defendant stated that "[he] may have, [he] may have not." Defendant then stated that hetalked to the victim at approximately 3:00 p.m. on the day that she died and that she came to hishouse where they had sex at approximately 4:00 p.m. When confronted with evidence showingthe victim had been with a friend around 4:00 p.m., defendant responded by recalling thatofficers had told him that the physical evidence showed that he had sex with the victim betweensix and eight hours before her death.
Viewing the foregoing evidence in a neutral light, it is submitted that it would not have beenunreasonable for the jury to reach a different verdict. The only evidence placing defendant at thevictim's apartment on the night of her death was the testimony of Virola and Tario, whosecredibility was challenged by defense counsel based on their delay in coming forward toinvestigators and, regarding Tario, the additional fact that no other witnesses specificallymentioned having seen her or her vehicle, which was purportedly stuck out of gear at the scene ofthe crime for 30 or 40 seconds. There was also no physical evidence placing defendant at thevictim's residence on the night of her death. Nevertheless, we defer to the jury's credibilitydeterminations and find that the verdict convicting defendant of manslaughter in the first degreeand arson in the second degree are amply supported by the weight of the evidence.
The weight of the evidence also establishes that defendant caused the death of the victim and,as a consequence, also caused the death of her unborn child. However, as part of our weight ofthe evidence review, we must consider defendant's argument that the evidence does not supportthe verdict convicting him of abortion in the first degree because killing the pregnant mother didnot constitute an abortional act, a required element of that crime. "A person is guilty of abortionin the first degree when he [or she] commits upon a female pregnant for more than [24] weeks anabortional act which causes the miscarriage of such female, unless such abortional act isjustifiable pursuant to [Penal Law § 125.05 (3)]" (Penal Law former§ 125.45).[FN1] An abortional act is defined, in turn, as "an actcommitted upon or with respect to a female, whether by another person or by the female herself,whether she is pregnant or not, whether directly upon her body or by the administering, taking orprescription of drugs or in any other manner, with intent to cause a miscarriage of such female"(Penal Law § 125.05 [former (2)]).[FN2]
Defendant notes that the statute does not define miscarriage and urges us to find that amiscarriage occurs only where an unborn fetus dies within the first 24 weeks of pregnancy and isexpelled from the uterus of a living woman. We decline to adopt the unduly narrow definitionadvanced by defendant. We agree with the First Department that the ordinary meaning ofmiscarriage is the death of a fetus prior to its birth (see People v Hall, 158 AD2d 69, 77[1990], lv denied upon reconsideration 76 NY2d 1021 [1990]; see also Matter ofKisha J., 225 AD2d 549, 549 [1996] [kicking a woman who was 7
Next, defendant's challenges to the sufficiency of the evidence presented and the instructionsprovided to the grand jury are precluded by our determination that the convictions were notagainst the weight of the evidence, which establishes that they were necessarily supported bylegally sufficient evidence (see CPL 210.30 [6]; People v Robinson, 156 AD3d 1123, 1128 n 8 [2017], lvdenied 30 NY3d 1119 [2018]). Moreover, our review of the grand jury minutes establishesthat "a quorum of grand jurors was present and fails to reveal any errors in the People'spresentation of the case that impaired the integrity of the proceedings or prejudiced defendantthat would warrant the exceptional remedy of reversal" (People v Robinson, 156 AD3d at1128 n 8; see CPL 210.35 [5]).
We are also unpersuaded that defendant was denied the effective assistance of counselbecause he failed to seek a limiting instruction and to request a missing witness charge. Nolimiting instruction was required regarding Virola's testimony that she did not immediately tellpolice about defendant's confession because he had directly threatened her (see People v Shortell, 155 AD3d1442, 1445 [2017], lv denied 31 NY3d 1087 [2018]; People v Williams, 25 AD3d 875,876 [2006], lv denied 6 NY3d 854 [2006]; People v King, 175 AD2d 266, 266[1991], lv denied 79 NY2d 828 [1991]). Further, a missing witness charge was notrequired with respect to the passenger in Tario's vehicle and several police officers with whomshe had spoken because they were expected to provide only cumulative testimony (see People v Pratt, 162 AD3d1202, 1204 [2018], lv denied 32 NY3d 940 [2018]; People v Wheeler, 159 AD3d1138, 1143 [2018], lv denied 31 NY3d 1123 [2018]). Defendant further contendsthat counsel was ineffective by failing to seek redaction of a hearsay statement from therecording of the third interview with defendant before it was played for thejury—specifically, the statement made by an officer conducting the interview that he hadbeen told by an unnamed witness, who the record reveals was Santana, that the victim hadexpected defendant to come to her home after the witness left. Although counsel erred in failingto object to the hearsay statement before the recording was played for the jury, County Courtpromptly gave a curative instruction, ordered that the recording be redacted before it was given tothe jury for deliberations and included a second curative instruction in its final charge to the jury.Thus, this error did not render counsel's assistance ineffective (see People v Howard, 305AD2d 869, 870 [2003], lv denied 100 NY2d 583 [2003]). We further note that counselpursued a rational trial strategy—that defendant was not at the victim's home on the dayshe died—vigorously impeached the testimony of the only two witnesses who placeddefendant at the scene of the crime, successfully opposed the admission of additionalincriminating testimony and secured an acquittal on the most serious charge, murder in thesecond degree. Accordingly, we conclude that the record reveals that defendant was providedwith meaningful representation (see People v Benevento, 91 NY2d 708, 713-715 [1998];People v Keener, 152 AD3d1073, 1076 [2017]; People vHenry, 129 AD3d 1334, 1337 [2015], lv denied 26 NY3d 930 [2015]).
Finally, we reject defendant's contention that the sentence imposed by County Court washarsh and excessive given the nature of his offenses and his young age. "A sentence that fallswithin the permissible statutory range will not be disturbed unless it can be shown that thesentencing court abused its discretion or extraordinary circumstances exist warranting amodification" (People v Malloy, 152AD3d 968, 971 [2017] [internal quotation marks and citations omitted], lv denied 30NY3d 981 [2017]). Although defendant was only 20 years old at sentencing and had not beenconvicted of a prior crime, given the heinous nature of his actions and complete lack of remorse,we discern no abuse of discretion or extraordinary circumstances warranting a reduction of thesentence in the interest of justice (see id.; People v Babcock, 152 AD3d 962, 968 [2017], lv denied 30NY3d 947 [2017]).
Garry, P.J., Egan Jr., Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Penal Law § 125.45was repealed effective January 22, 2019 (see L 2019, ch 1, § 5).
Footnote 2:Subdivisions (2) and (3) of PenalLaw § 125.05 were repealed, effective January 22, 2019 (see L 2019, ch 1,§ 7-a).
Footnote 3:We recognize the argument,asserted by amici curiae, that a violent attack upon a pregnant woman may be prosecuted as anassault, but do not find that it requires overturning the subject conviction.