| People v Wiley |
| 2009 NY Slip Op 08297 [67 AD3d 1370] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Nicholas L.Wiley, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedOctober 18, 2006. The judgment convicted defendant, upon a jury verdict, of murder in the firstdegree, murder in the second degree (three counts) and criminal possession of a weapon in thethird degree (three counts).
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the fines imposed for criminal possession of a weapon in the third degree under thefifth, sixth, and seventh counts of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofone count of murder in the first degree (Penal Law § 125.27 [1] [a] [xi]; [b]), three countseach of murder in the second degree (§ 125.25 [1]) and criminal possession of a weapon inthe third degree (§ 265.02 [1]). Viewing the evidence in light of the elements of murder inthe first and second degrees as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we rejectdefendant's contention that the verdict with respect to those counts is against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Contrary todefendant's further contention, the evidence is legally sufficient to support the count of murder inthe first degree inasmuch as the evidence establishes that defendant committed three murders "ina similar fashion" (Penal Law § 125.27 [1] [a] [xi]; see also People v Shulman, 6 NY3d 1, 34-35 [2005], certdenied 547 US 1043 [2006]; see generally Bleakley, 69 NY2d at 495).
Defendant further contends that his statements to the police were involuntary on the groundthat his interview amounted to "psychological coercion." We reject that contention (seegenerally People v Whorley, 286 AD2d 858, 859 [2001], lv denied 97 NY2d 689[2001]). In addition, the fact that the police were not truthful when they informed defendant thatthey had found evidence of a crime in the dumpster outside of his apartment did not render hisstatement involuntary, i.e., the police did not thereby create "a substantial risk that the defendantmight falsely incriminate himself" (CPL 60.45 [2] [b] [i]; People v Hamelinck, 222AD2d 1024 [1995], lv denied 87 NY2d 921 [1996]).[*2]
Defendant failed to preserve for our review his furthercontention that his written statement to the police should have been "severely redacted" beforeCounty Court admitted it in evidence (see CPL 470.05 [2]). Indeed, we note thatdefendant agreed to admit in evidence a partially redacted statement that contained references tohis prior "institutionalization." We decline to exercise our power to review defendant'scontention that the statement should have been "severely redacted" as a matter of discretion inthe interest of justice (see CPL 470.15 [6] [a]).
We agree with defendant, however, that the court erred in imposing a fine on each count ofcriminal possession of a weapon in the third degree (see Penal Law § 80.15). ThePeople failed to establish that the possession of the kitchen knives used to commit the murderswere acts "separate and distinct" from the murders (People v Smith, 294 AD2d 822, 823[2002], lv denied 99 NY2d 620 [2003] [internal quotation marks omitted]). We thereforemodify the judgment accordingly. Present—Centra, J.P., Fahey, Peradotto, Carni andGorski, JJ.