| People v Hesterbay |
| 2009 NY Slip Op 02300 [60 AD3d 564] |
| March 26, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Diatra Hesterbay, Also Known as Diatra Hester-Bey,Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Susan Axelrod of counsel), forrespondent.
Judgments, Supreme Court, New York County (Lewis Bart Stone, J., at suppression hearing,Robert M. Stolz, J., at first trial and sentence; Edward McLaughlin, J., at second trial andsentence), rendered April 12, 2006, convicting defendant, after a jury trial, of welfare fraud inthe third degree, grand larceny in the third degree and four counts of offering a false instrumentfor filing in the first degree, and sentencing her to an aggregate term of 2 to 6 years, and alsoconvicting her, after a jury trial, of criminally negligent homicide, and sentencing her to aconsecutive term of 1
Defendant was convicted of smothering her 14-month-old son in an effort to get him to liestill and take a nap, as well as collecting welfare benefits for her son for four years after hisdeath. At her first trial, defendant was convicted of the welfare fraud-related charges, but the jurywas unable to reach a verdict on the criminally negligent homicide charge, which was the subjectof the second trial.
The hearing court properly denied defendant's motion to suppress statements. The policewere not required to give Miranda warnings prior to the first statement at issue, becausea reasonable person in defendant's position, innocent of any crime, would have believed that thepolice were investigating a child's disappearance, and that she was free to leave (see People vYukl, 25 NY2d 585 [1969], cert denied 400 US 851 [1970]). Defendant voluntarilyaccompanied the officers to the police station, where they did not restrain her or do anything toconvey that the interview had become custodial or that they had decided to make an arrest(see e.g. People v Dillhunt,41 AD3d 216 [2007], lv denied 10 NY3d 764 [2008]). Moreover, her expectation ofbeing free to leave was enhanced by the fact that, earlier in the same investigation, policequestioned her at the precinct and then brought her home.
After defendant admitted that her son was dead, an officer administered Mirandawarnings, and police investigation into the circumstances of the death continued. Thetotality of the circumstances establishes that the statements defendant gave the following day, inwhich she admitted to having smothered her son, were voluntarily made (see Arizona vFulminante, 499 US 279, 285-288 [1991]). The [*2]circumstances were not unduly coercive, and the delay indefendant's arraignment was satisfactorily explained, was not excessive, and did not render theconfession involuntary (see People v Ramos, 99 NY2d 27, 35 [2002]; People vIrons, 285 AD2d 383 [2001], lv denied 97 NY2d 641 [2001]).
At the first trial, although no issue of venue in New York County had been litigated, and noinstruction on that subject had been requested or delivered, a note from the deliberating juryappeared to inquire about that subject with respect to the offering a false instrument for filingcharges. Since defendant's only suggestion was that the court respond to the note by rereadingthe elements of the crimes, the only argument she has preserved is an argument that the courtshould have responded in that manner (see People v Hoke, 62 NY2d 1022 [1984]), andwe find that argument without merit. Thus, defendant failed to preserve her remaining argumentsconcerning the court's response (see id.), including her claim that the court improperlyremoved the issue of venue from the jury's consideration, and we decline to review them in theinterest of justice. As an alternative holding, we also reject them on the merits. The courtresponded to the note by stating, in substance, that venue was not an issue. This was entirelycorrect, because defendant had waived the issue by failing to request a jury charge on venue(see People v Greenberg, 89 NY2d 553, 556 [1997]), and the jury's note did not obligatethe court to instruct the jury on a matter that had not been at issue during the trial (see People v Medor, 39 AD3d 362[2007], lv denied 9 NY3d 867 [2007]; People v Vigay, 200 AD2d 360 [1994],lv denied 83 NY2d 877 [1994]). We have considered and rejected defendant's argumentthat her attorney rendered ineffective assistance on this issue, and her procedural claimsconcerning the position taken by the trial prosecutor regarding the note.
At the second trial, a principal issue was the voluntariness of defendant's statements. Defensecounsel's extensive cross-examination of police witnesses about the circumstances under whichthe statements were made raised complex and technical legal issues, and some of these inquiriestended, by implication, to mislead the jury as to the applicable law. Accordingly, the courtproperly exercised its discretion (see People v Moulton, 43 NY2d 944 [1978]) when itgave the jury brief clarifying instructions on particular matters relating to voluntariness at severaljunctures during defendant's cross-examination, generally in response to the People's objections(cf. People v Crispino, 298 AD2d 220, 221-222 [2002], lv denied 99 NY2d 627[2003]). We do not find that defendant was prejudiced by either the content or the timing of anyof these instructions.
Viewed as a whole, the court's responses to notes from the deliberating jury at the secondtrial on the subject of voluntariness conveyed the applicable standards and did not causedefendant any prejudice (see CPL 60.45 [2]; People v Tarsia, 50 NY2d 1, 11[1980]). We do not find that the court signaled to the jury that it held any particular opinion onthe issue of voluntariness, either in these responses or at any other point in the trial. Defendant'schallenge to a portion of the court's main charge on voluntariness is unpreserved and withoutmerit.
While we find it was error for the Court and the prosecution not to redact irrelevant mattercontained in defendant's confession and for the prosecutor to refer to such matter in hersummation, in view of the totality of evidence, the error was harmless (see People vCrimmins, 36 NY2d 230 [1975]).[*3]
We have considered and rejected defendant's argumentthat her confession was not corroborated by additional proof that a crime was committed(see CPL 60.50). Concur—Mazzarelli, J.P., Saxe, Nardelli, DeGrasse andFreedman, JJ.