| People v Colbert |
| 2009 NY Slip Op 01890 [60 AD3d 1209] |
| March 19, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Paul Colbert,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Kane, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered September16, 2005 in Albany County, upon a verdict convicting defendant of the crime of manslaughter inthe second degree.
Several months after defendant reported that his girlfriend was missing, her skeletal remainswere discovered in a wooded area. Defendant was indicted on two counts of murder in thesecond degree in connection with her death. County Court (Herrick, J.) denied defendant'ssuppression motion. At the conclusion of the trial in Supreme Court (Lamont, J.), the juryacquitted defendant of murder in the second degree and manslaughter in the first degree, butfound him guilty of manslaughter in the second degree. Defendant appeals.
By requesting the submission to the jury of a lesser included offense, defendant forfeited hisright to argue that the evidence was legally insufficient to support that lesser offense (see People v McDuffie, 46 AD3d1385, 1386 [2007], lv denied 10 NY3d 867 [2008]; People v Kearney, 25 AD3d 622,623 [2006], lv denied 6 NY3d 849 [2006]; People v Gill, 20 AD3d 434, 434 [2005]; People v Legacy,4 AD2d 453, 455 [1957]). Upon our independent review of the evidence, giving deference to thejury's credibility determinations, we find that the conviction is not against the weight of theevidence (see People v Barringer,54 AD3d 442, 443 [2008], lv [*2]denied 11 NY3d830 [2008]). Based upon the advanced state of decomposition and the absence of some bones,the forensic pathologist was unable to conclusively determine a cause of death. The bones didnot sustain any damage that would suggest shooting, stabbing or blunt force trauma, and noblood or weapons were found in the apartment that the victim shared with defendant. Whiledefendant contended that suicide was a viable cause of death, the victim's remains were found ina remote location, without any means of carrying out a suicide found nearby. The pathologisttestified that death by strangulation was consistent with the available information (compare People v Toland, 2 AD3d1053, 1054-1055 [2003], lv denied 2 NY3d 808 [2004]). Defendant was the lastperson to see the victim alive, had argued with her extensively and engaged in physicalaltercations with her in the past, including choking her at least once before. Defendant's friendtestified that defendant revealed the victim's body in a steamer trunk and sought assistance indisposing of the body. The friend provided defendant with maps of the area and told police theinitial direction that defendant related he had gone to dispose of the body. Considering thisevidence, and the jury's apparent acceptance of the friend's testimony, the weight of the evidencesupported a finding that defendant recklessly caused the victim's death.
County Court properly denied defendant's suppression motion. Police may generally engagein deception while investigating a crime, with suppression required only where "the deceptionwas so fundamentally unfair as to deny due process or that a promise or threat was made thatcould induce a false confession" (People v Tarsia, 50 NY2d 1, 11 [1980] [citationsomitted]; see People v Dishaw, 30AD3d 689, 690 [2006], lv denied 7 NY3d 787 [2006]; People v Hines, 9 AD3d 507, 510[2004], lv denied 3 NY3d 707 [2004]). Here, detectives created a fake statementpurportedly signed by defendant, which they presented to his friend to deceive him into thinkingdefendant was implicating the friend in the victim's death. After reading the fake statement, thefriend gave the police a written statement. Defendant himself was not subjected to anysubterfuge that could affect his due process rights, and no threats or promises were made to hisfriend. Before the friend signed his statement, the police revealed their deception to him andthereafter confirmed that his statement was true. As the police did not violate the constitution inobtaining the statement from defendant's friend, the court correctly refused to suppress hisstatement and testimony.
Suppression was also not required for the physical evidence obtained by police. Thephotographs of defendant's apartment and car were admissible. Taking photographs tomemorialize the scene of a warrant-authorized search did not constitute any additional invasionof privacy, nor violate any of defendant's rights (see People v Spencer, 272 AD2d 682,683 [2000], lv denied 95 NY2d 858 [2000]; People v Nelson, 144 AD2d 714,715-716 [1988], lv denied 73 NY2d 894 [1989]). Although the police admittedly seizedand towed defendant's car without a warrant, they only secured the car and did not search it untila warrant was obtained. That warrant was not based upon the seizure. Suppression is notrequired for any evidence obtained from the car, as the seizure of that evidence was not causallyrelated to the allegedly illegal police conduct (see People v Arnau, 58 NY2d 27, 32[1982], cert denied 468 US 1217 [1984]; People v Richardson, 9 AD3d 783, 788 [2004], lv denied 3NY3d 680 [2004]; People v Binns, 299 AD2d 651, 653 [2002], lv denied 99NY2d 612 [2003]). Items collected from the apartment by the victim's relatives and turned overto police were not subject to suppression, as the police did not seize those items. Thus, CountyCourt's suppression rulings were proper.
Supreme Court properly allowed the People to elicit evidence concerning two prior physicalaltercations between defendant and the victim. Prior uncharged criminal conduct is [*3]generally inadmissible and cannot be used to show criminalpropensity (see People v Wlasiuk,32 AD3d 674, 676 [2006], lv dismissed 7 NY3d 871 [2006]; People v James, 19 AD3d 616,616 [2005], lv denied 5 NY3d 807 [2005]). But prior acts of domestic violence "are morelikely to be considered relevant and probative evidence because the aggression and bad acts arefocused on one particular person, demonstrating the defendant's intent, motive, identity andabsence of mistake or accident" (Peoplev Westerling, 48 AD3d 965, 966 [2008]; see People v Williams, 29 AD3d 1217, 1219 [2006], lvdenied 7 NY3d 797 [2006]). Here, the court adequately weighed the probative value of theproffered evidence against its potential for prejudice, excluding testimony about some argumentsand only permitting testimony regarding two altercations directly reflecting on defendant'smotive and intent (see People vGorham, 17 AD3d 858, 860 [2005]). The opportunity for prejudice was also diminishedby the court's instructions to the jury, after the testimony was received and during the finalcharge, on the limited purpose of this testimony (see People v James, 19 AD3d at616-617).
Supreme Court correctly denied defendant's request to charge the jury that his friend was anaccomplice whose testimony required corroboration. The friend did not assist defendant in anyway until after the victim was dead. Thus, he was at most an accessory after the fact, not anaccomplice subject to the corroboration requirement of CPL 60.22 (2) (see People vDygert, 229 AD2d 735, 736 [1996], lv denied 89 NY2d 921 [1996]; People vSacco, 199 AD2d 288, 289 [1993], lv dismissed 82 NY2d 853 [1993], lvdenied 84 NY2d 832 [1994]).
Defendant's remaining contentions have been reviewed and are without merit.
Cardona, P.J., Peters, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.