| People v Heath |
| 2008 NY Slip Op 02053 [49 AD3d 970] |
| March 13, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v James ChadHeath, Appellant. |
—[*1] Gwen Wilkinson, District Attorney, Ithaca (Ann C. Sullivan of New York ProsecutorsTraining Institute, Albany, of counsel), for respondent.
Rose, J. Appeal from a judgment of the County Court of Tompkins County (Sherman, J.),rendered October 29, 2003, upon a verdict convicting defendant of the crimes of murder in thesecond degree, manslaughter in the first degree, attempted robbery in the first degree andattempted kidnapping in the second degree.
Following the savage beating and death of the victim, defendant was charged with twocounts of murder in the second degree (felony murder and depraved indifference murder),manslaughter in the first degree, attempted robbery in the first degree and attempted kidnappingin the second degree. At the ensuing jury trial, the People presented evidence that the victim anddefendant had been traffickers of marihuana, and that defendant attacked the victim to recover alarge quantity of the drug that defendant believed the victim had stolen from their enterprise. Thejury found defendant not guilty of depraved indifference murder, but guilty of the remainingcharges. County Court sentenced him to an aggregate term of 25 years to life in prison, and henow appeals.
Among defendant's many contentions is the claim that his convictions of attempted robberyand attempted kidnapping are not based upon legally sufficient evidence and, thus, the Peoplefailed to establish a predicate to felony murder (see Penal Law § 125.25 [3]). We[*2]disagree. There is evidence that after defendant becameconvinced that the victim had betrayed him by stealing their inventory, he plotted with anaccomplice to forcibly either retake the marihuana or, if the victim had already sold it, theproceeds. Two witnesses testified that they overheard defendant express his intention to force thevictim to give up the marihuana or the proceeds. The accomplice testified that he had agreed toaid defendant in this plan and, to that end, he met with the victim and defendant at his trailer,where defendant sucker-punched the victim in the face. The accomplice related that this blowcaused the victim to hit his head and fall to the floor, and that defendant then repeatedly punchedthe victim in the face and mouth, kicked him while he was down and smashed his head into thefloor for 10 to 15 minutes. His testimony and the forensic evidence further showed thatdefendant's actions rendered the victim immobile, defendant attempted to wrap duct tape aroundthe victim's head, and defendant and the accomplice then placed the unconscious victim under acomforter on the back seat of his own car. Defendant ultimately drove the victim, whileapparently still alive, to a hospital parking lot in a neighboring county where defendantabandoned the car. The victim's frozen body was discovered six days later.
From this evidence and the attendant circumstances, the jury could have reasonably inferredthat defendant attempted to forcibly take drugs or money from the victim and caused seriousphysical injury in the course of that attempt (see Penal Law §§ 110.00,160.15 [1]; People v Gajadhar, 38AD3d 127, 136 [2007], affd 9 NY3d 438 [2007]; People v Ricco, 11 AD3d 343, 344 [2004], lv denied 4NY3d 835 [2005]). Similarly, as to the charge of attempted kidnapping, the jury could havereasonably inferred that defendant attempted to "restrain [the victim] with intent to prevent hisliberation by either (a) secreting or holding him in a place where he is not likely to be found, or(b) using or threatening to use deadly physical force" (Penal Law § 135.00 [2]; seePeople v Linderberry, 222 AD2d 731, 734 [1995], lv denied 87 NY2d 975 [1996];People v Carter, 263 AD2d 958, 958-959 [1999], lv denied 94 NY2d 820 [1999];People v Salimi, 159 AD2d 658, 658-659 [1990], lv denied 76 NY2d 742[1990]). Inasmuch as both predicate felonies are supported by legally sufficient evidence, and thevictim's death clearly resulted in the course of those crimes (see Penal Law §125.25 [3]), defendant's conviction for felony murder also is supported by legally sufficientevidence. Further, after viewing the evidence in a neutral light and according deference to thejury's credibility determinations (see People v Bleakley, 69 NY2d 490, 495 [1987]), wefind that defendant's convictions are not against the weight of the evidence.
Defendant also contends that County Court abused its discretion in denying his applicationfor permission to file a late notice of intent to offer a psychiatric defense (see CPL 250.10[2]). This application was made immediately after learning that the accomplice had accepted aplea bargain and agreed to testify against defendant, but only six days before trial was to begin. Inour view, County Court properly weighed the potential prejudice to the prosecution againstdefendant's right to present his case (seee.g. People v LeFebvre, 45 AD3d 1175, 1176 [2007]). While preclusion is a drasticremedy, the record supports the court's ruling that the defense's last-minute change of strategy didnot constitute good cause and would unfairly prejudice the People. At the hearing on defendant'sapplication, defense counsel acknowledged that he had been aware of defendant's mental healthhistory from the inception of the case. He also "confirmed that the subject of a psychiatricdefense was previously discussed . . . and [that he] made a strategic decision not toutilize that defense. This alone established a lack of good cause, sufficient to deny the. . . motion" (People vPerry, 31 AD3d 814, 816 [2006], lv denied 7 NY3d 869 [2006] [citationsomitted]; see People v Hill, 4 NY3d876, 877 [2005]). Nor can we agree with defendant's current claim that it would have beenirresponsible to assert a psychiatric [*3]defense before theaccomplice agreed to testify. The theory of the People's case did not change, and counsel wasaware from the beginning that there was an eyewitness who would likely testify for theprosecution if a plea bargain were struck.
Nor are we persuaded that County Court permitted the People's forensic pathologist to testifyas to defendant's mental state. The admissibility and scope of expert testimony are committed tothe sound discretion of the trial court (see People v Cronin, 60 NY2d 430, 433 [1983]; People v Wallis, 24 AD3d 1029,1032 [2005], lv denied 6 NY3d 854 [2006]). Here, the pathologist opined that "theinjuries to the face and head of this victim were a personal attack on the victim" and that theinjury pattern did not indicate "a knockdown drag-out brawl, with arms flinging [but rather] wasdesigned to humiliate and injure the face of the victim in particular." We find no fault withCounty Court's view that this testimony was offered to explain "the nature of the attack, a subjectwell within [the pathologist's] area of competence, and not . . . defendant's state ofmind" (People v Smith, 59 NY2d 156, 168 [1983]; see People v Kinitsky, 166AD2d 456, 457 [1990], lv denied 77 NY2d 840 [1991]).
On the other hand, it was error to allow the pathologist to also opine that the death was ahomicide, since "[s]uch characterization improperly invaded the province of the jury" (People v Odell, 26 AD3d 527, 529[2006], lv denied 7 NY3d 760 [2006]; see People v Langlois, 17 AD3d 772, 774 [2005]). However,defendant failed to object to this testimony when it was offered (see People v Odell, 26AD3d at 529) and, in any event, the error was harmless in light of the overwhelming evidence ofdefendant's guilt (see People v Langlois, 17 AD3d at 774).
Next, County Court properly refused to compel another accomplice, defendant's girlfriend atthe time of the murder, to testify for him despite her expressed intention to invoke her 5thAmendment privilege against self-incrimination. Although she pleaded guilty to the crime oftampering with physical evidence (see Penal Law § 215.40) for her conduct on theday of the victim's death and this plea would preclude further incrimination as to that day,defense counsel indicated that he would seek to elicit testimony from her regarding other topicsand other dates. Thus, her testimony could have constituted evidence of other criminal activity,such as hindering prosecution by helping defendant avoid apprehension (see Penal Law§ 205.60; People v Coscia, 279 AD2d 352, 352 [2001]; see generally Hoffmanv United States, 341 US 479, 486-487 [1951]). As for defendant's request for a missingwitness charge with respect to her, he did not show that the People failed to call a witness whowas available, under their control and who would be expected to testify in the People's favor(see People v Keen, 94 NY2d 533, 539 [2000]; People v Pereau, 45 AD3d 978, 981 [2007], lv denied 9NY3d 1037 [2008]).
In reviewing defendant's contention in his pro se brief that he was deprived of the right to theeffective assistance of counsel, we need only note that defendant "failed to show the absence of astrategic or other legitimate explanation for what he contends was counsel's failure" (People v Carralero, 9 AD3d 790,792 [2004], lv denied 4 NY3d 742 [2004]; see People v Garcia, 75 NY2d 973,974 [1990]; People v Van Ness, 43AD3d 553, 555-556 [2007], lv denied 9 NY3d 965 [2007]). Further, counsel'seffectiveness is clearly illustrated by his success in obtaining an acquittal on the charge ofdepraved indifference murder (seePeople v Lewis, 46 AD3d 943, 947 [2007]).
We have considered defendant's remaining arguments, including those made in his pro sebrief, and find them to be, in most cases, unpreserved and, in all cases, lacking in merit.[*4]
Cardona, P.J., Peters, Carpinello and Malone Jr., JJ.,concur. Ordered that the judgment is affirmed.