| People v Debo |
| 2007 NY Slip Op 08574 [45 AD3d 1349] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Theresa A.Debo, Appellant. |
—[*1] Donald H. Dodd, District Attorney, Oswego (Mary E. Rain of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), renderedJanuary 9, 2006. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: On appeal from a judgment convicting her upon a jury verdict of murder inthe second degree (Penal Law § 125.25 [1]), defendant contends that County Court erred inrefusing to suppress the statements that she made to the police during questioning at the policestation. We reject that contention. At the crime scene, defendant informed the responding policeofficers that an unknown assailant entered her home, knocked her unconscious and shot herboyfriend. Defendant thereafter was taken to the police station, where she made the oral andwritten statements in question. Under the circumstances, we conclude that a reasonable person,innocent of any crime, would not have believed that he or she was in police custody but, rather,would have believed that he or she was being interviewed as a witness to a crime (see People v Sherry, 41 AD3d1235, 1236 [2007]; see generally People v Yukl, 25 NY2d 585, 589 [1969], certdenied 400 US 851 [1970]). In any event, even assuming, arguendo, that defendant was inpolice custody when she made the statements, we note that she was given Mirandawarnings at the crime scene. "[I]t is not necessary to repeat the warnings prior to subsequentquestioning within a reasonable time thereafter, so long as the custody has remained continuous"(People v Glinsman, 107 AD2d 710, 710 [1985], lv denied 64 NY2d 889 [1985],cert denied 472 US 1021 [1985]), and here the custody was continuous.
The court properly denied defendant's motion for a mistrial on the ground that the Peoplefailed to preserve material evidence, i.e., a couch that, according to defendant, would provideexculpatory evidence. The basis for defendant's motion was purely speculative (see People vSchulze, 224 AD2d 729, 730 [1996], lv denied 88 NY2d 853 [1996]; People vPorter, 179 AD2d 1018, 1018-1019 [1992], lv denied 79 NY2d 1006 [1992]) and, inany event, defendant never sought the production of the couch "or expressed an interest inperforming independent tests until its destruction was disclosed in the middle of trial. On thisrecord, the only conclusion to be drawn is that defendant forfeited whatever right [she] had todemand production of the [couch] and, consequently, [she] cannot now complain about thePeople's failure to preserve it" (People v Allgood, 70 NY2d 812, [*2]813 [1987]). Defendant was not deprived of effective assistance ofcounsel based on defense counsel's failure to request production of the missing couch because, asnoted, its value was purely speculative, and defense counsel used numerous photographs of thecouch to advance defendant's theory of the case (see generally People v Baldi, 54 NY2d137, 147 [1981]). Contrary to defendant's further contentions, the verdict is not against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]), andthe sentence is not unduly harsh or severe. Present—Scudder, P.J., Hurlbutt, Fahey, Greenand Pine, JJ.