| People v Heimroth |
| 2020 NY Slip Op 01523 [181 AD3d 967] |
| March 5, 2020 |
| Appellate Division, Third Department |
[*1](March 5, 2020)
| The People of the State of New York,Respondent, v Jacob Heimroth, Appellant. |
Sandra M. Colatosti, Albany, for appellant.
Mary Pat Donnelly, District Attorney, Troy (Jacob B. Sher of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the Supreme Court (Ceresia, J.), renderedJanuary 4, 2017 in Rensselaer County, upon a verdict convicting defendant of the crimesof murder in the second degree (two counts), burglary in the first degree (two counts) andgrand larceny in the fourth degree.
In August 2014, defendant and a childhood acquaintance went to the victims' trailerand killed them. Victim 1 was struck multiple times by an aluminum bat and victim 2was repeatedly hit with a two-by-four. In September 2014, defendant was charged byindictment with multiple crimes stemming from the deaths of victims 1 and 2. In July2015, however, the indictment was dismissed on the basis that the evidence presented tothe grand jury was not legally sufficient. The People were granted leave to re-present andan indictment in August 2015 followed. Prior to trial, defendant moved to dismiss theAugust 2015 indictment on the ground that his constitutional right to a speedy trial wasviolated. Supreme Court denied the motion. A jury trial was held, after which defendantwas convicted of murder in the second degree (two counts), burglary in the first degree(two counts) and grand larceny in the fourth degree. Defendant's subsequent motion toset aside the verdict under CPL 330.30 (1) was denied. The court then sentenceddefendant to a term of imprisonment. This appeal ensued. We affirm.
Defendant premises his legal sufficiency and weight of the evidence arguments onwhat he claims was a lack of evidence to corroborate the acquaintance's testimony thatdefendant participated in the crimes at issue. "A defendant may not be convicted of anyoffense upon the testimony of an accomplice unsupported by corroborative evidencetending to connect the defendant with the commission of such offense" (CPL 60.22 [1];People v Fields, 160 AD3d1116, 1117 [2018], lv denied 31 NY3d 1116 [2018]; People v Furman, 152 AD3d870, 871 [2017], lv denied 30 NY3d 1060 [2017]). "The corroborativeevidence need only tend to connect the defendant to the crime; it need not establish allthe elements of the offense" (People v Steinberg, 79 NY2d 673, 683 [1992][internal quotation marks, brackets and citations omitted]; see People v Matthews, 101AD3d 1363, 1365 [2012], lv denied 20 NY3d 1101 [2013]; People vDuncan, 256 AD2d 1016, 1017 [1998], lv denied 93 NY2d 873 [1999]).
At trial, the acquaintance testified that, on the night in question, he and defendantfirst went to the house of one of defendant's friends. After they left, defendant and theacquaintance retrieved an aluminum bat at defendant's house and went to the river wherethey drank beers and consumed drugs. The acquaintance testified that he was not happythat victim 1, who was married to victim 2, was dating his aunt and so he and defendantwalked to the victims' trailer to "pay him a visit." While en route, defendant picked up atwo-by-four. They arrived at the trailer, and they each kicked down the door. After theyentered, victim 1 was beaten with the aluminum bat and victim 2 was bludgeoned withthe two-by-four. The acquaintance then rummaged through the victims' dresser in thebedroom for money but was unsuccessful. They eventually left the trailer, took victim 1'sFord Escape and drove away.
To corroborate the acquaintance's testimony, the People offered the testimony ofdefendant's friend, who stated that both defendant and the acquaintance came to hishouse late one night in August 2014. Another friend testified that on one morning inAugust 2014, defendant and the acquaintance appeared at her house in a Ford Escape.The victims' neighbor testified that she called 911 after having observed two people runaround the victims' car before it was driven away.[FN1] One of the acquaintance's relativestestified that she drove defendant and the acquaintance in her car and that, after doing so,she found a blue fleece sweatshirt in the back seat where defendant had been sitting. Theacquaintance's aunt testified that victim 1 kept extra clothes in his car and, on oneinstance, he retrieved a blue fleece sweatshirt from the car for her to wear. The Peoplealso offered photographs of the victims' door depicting two separate footprints and thetestimony of a medical examiner attesting that victim 2's bruising and abrasions werecaused by a rectangular object. In view of the foregoing, we conclude that theacquaintance's testimony was more than adequately corroborated (see People v Malak, 117 AD3d1170, 1173-1174 [2014], lv denied 24 NY3d 1086 [2014]; People v Walton, 16 AD3d903, 904 [2005], lv denied 5 NY3d 796 [2005]; People v Lawrence, 1 AD3d625, 626-627 [2003], lv denied 1 NY3d 630 [2004]; People vRiddick, 246 AD2d 821, 822-823 [1998], lv denied 91 NY2d 944[1998]).
Defendant asserts that almost 23 months passed from when he was initially indictedin September 2014 to when trial commenced in July 2016 and that, as a consequence, hewas deprived of his constitutional right to a speedy trial. When assessing whether acriminal defendant's constitutional right to a speedy trial has been violated, "[t]he fivefactors to be considered are: (1) the extent of the delay; (2) the reason for the delay; (3)the nature of the underlying charges; (4) any extended period of pretrial incarceration;and (5) any impairment of [the] defendant's defense" (People v Romeo, 12 NY3d 51, 55 [2009], certdenied 558 US 817 [2009]; see People v Anderson, 114 AD3d 1083, 1084 [2014],lv denied 22 NY3d 1196 [2014]). The time period at issue is substantial and, inthe absence of any justification, would be viewed as excessive (see People vRomeo, 12 NY3d at 56). Although defendant has been incarcerated for the entireperiod, the charges involved serious crimes (see People v Decker, 13 NY3d 12, 15 [2009]; People v Swan, 90 AD3d1146, 1147 [2011]). Furthermore, defendant's cursory claim that the memory ofwitnesses has faded due to the passage of time is "too speculative to carry significantweight" when assessing the various factors (People v Chaplin, 134 AD3d 1148, 1150 [2015], lvdenied 27 NY3d 1067 [2016]). The record also discloses that much of the delay wasoccasioned by various routine pretrial matters as opposed to prosecutorial inaction.Accordingly, we cannot say that defendant was deprived of his constitutional right to aspeedy trial (see People vWilliams, 163 AD3d 1283, 1285-1286 [2018], lv denied 32 NY3d 1069[2018]; People v McNeal,91 AD3d 1204, 1205 [2012], lv denied 18 NY3d 996 [2012]; People v Rogers, 8 AD3d888, 889-890 [2004]; People v Rouse, 4 AD3d 553, 556 [2004], lv denied2 NY3d 805 [2004]).
We reject defendant's assertion that Supreme Court erred in admitting photographs ofthe victims' deceased bodies. "[P]hotographs are admissible if they tend to prove ordisprove a disputed or material issue, to illustrate or elucidate other relevant evidence, orto corroborate or disprove some other evidence offered or to be offered" (People vWood, 79 NY2d 958, 960 [1992] [internal quotation marks and citation omitted]).Despite the graphic nature of the photographs, they were relevant on the issue of intentand to show the locations of one of the victims' bodies, the severity of the inflictedinjuries and the nature of the weapon used upon each victim (see People vStevens, 76 NY2d 833, 836 [1990]; People v Stover, 178 AD3d 1138, 1144 [2019]; People v Powell, 115 AD3d998, 1000 [2014], lv denied 23 NY3d 1024 [2014]). Given that the Peopledid not admit the photographs for the sole purpose of "arousing the emotions of the juryand to prejudice defendant" (People v Greenfield, 167 AD3d 1060, 1063 [2018][internal quotation marks, brackets, ellipsis and citation omitted], lv denied 32NY3d 1204 [2019]) and taking into account the court's cautionary instructions to the jury(see People v Poulin, 159AD3d 1049, 1051-1052 [2018], lv denied 32 NY3d 940 [2018]), we findthat there was no abuse of discretion in the admission of the photographs (see People v Ford, 43 AD3d571, 574 [2007], lv denied 9 NY3d 1033 [2008]; People vMastropietro, 232 AD2d 725, 726 [1996], lv denied 89 NY2d 1038 [1997];People v Webb, 184 AD2d 920, 920 [1992], lv denied 80 NY2d 935[1992]).
We also find that Supreme Court provided a meaningful response to the jury's noteand correctly denied defendant's request for a supplemental readback of a portion of theneighbor's cross-examination testimony.[FN2] During deliberations, the jury requesteda readback of a specific portion of the neighbor's testimony that was limited to aparticular time frame. In this regard, the jury asked to be read that part of the neighbor'stestimony "when she hear[d] knocking and banging at the same time she saw a shadow inthe window over the dresser in the bedroom." The court had the court reporter identifythe relevant testimony, which was then read to the jury. Although no exception wasinitially noted to what was read, defense counsel thereafter requested that a portion of theneighbor's testimony on cross-examination be read. Defense counsel argued that theinference created by the jury's request and the read testimony was that there were twopeople in the trailer and that, on cross-examination, the neighbor was challenged as toher observations of two people. In our view, however, the court correctly found that thespecific cross-examination testimony that defendant had asked to be read pertained to adifferent time frame than what the jury had requested and was not responsive to the jury'snote. As such, under the circumstances of this case, the court's response was meaningful(see People v Grant, 127AD3d 990, 991 [2015], lv denied 26 NY3d 968 [2015]; see generallyPeople v Almodovar, 62 NY2d 126, 131-132 [1984]).
Turning to defendant's motion to set aside the verdict, one ground advanced bydefendant was that the People committed a Brady violation. In particular,defendant argues that the People failed to disclose that an individual, who defendantclaims had a familial relationship with the neighbor, had been prosecuted for a crime andthat had this been timely disclosed, he could have cross-examined the neighbor about anybenefit this individual received in exchange for her testimony. "A Brady violationoccurs when the People fail to timely disclose all exculpatory and material evidence,including evidence that could be used to challenge the credibility of a crucial prosecutionwitness" (People v Johnson,107 AD3d 1161, 1164 [2013] [internal quotation marks and citations omitted], lvdenied 21 NY3d 1075 [2013]; see People v Hagaman, 139 AD3d 1183, 1185 [2016],lv denied 28 NY3d 930 [2016]). Defendant, however, failed to submit any proofsubstantiating his claim that the neighbor and the individual were related. Furthermore,as Supreme Court noted, even if a familial relationship existed, there was no evidenceindicating that the neighbor was even aware of the charges against the individual.Accordingly, we find that there was no Brady violation.
We are also unpersuaded by defendant's other ground raised in his motion to setaside the verdict—that the People knowingly elicited false testimony from theneighbor. Defendant's argument centers on the neighbor's admission oncross-examination that her testimony on direct examination that she observed two peoplenear the vehicle was false. In our view, however, defendant failed to establish that thePeople knew that the neighbor's testimony as to seeing two people was false when shetestified on direct examination (see People v Lent, 204 AD2d 855, 855 [1994],lv denied 84 NY2d 869 [1994]). Even assuming that the People did knowinglyelicit false testimony, "there is no reasonable possibility that the error contributed to theconviction" (People vColon, 13 NY3d 343, 349 [2009] [internal quotation marks and citationomitted]).
Egan Jr., J.P., Lynch, Devine and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.
Footnote 1:Although the neighborsubsequently admitted on cross-examination that her testimony that she observed twopeople was false, the jury was free "to accept some of her testimony while rejecting otherportions of it" (People vBeliard, 101 AD3d 1236, 1239 [2012] [internal quotation marks, brackets andcitation omitted], lv denied 20 NY3d 1096 [2013]; see People v Hodges, 66 AD3d1228, 1231 [2009], lv denied 13 NY3d 939 [2010]; People v Bass,277 AD2d 488, 497 [2000], lv denied 96 NY2d 780 [2001]).
Footnote 2:Contrary to the People'sassertion, this argument is preserved given that defendant requested that a portion of thecross-examination testimony be read to the jury, and Supreme Court denied the request.