| People v Arena |
| 2010 NY Slip Op 00527 [69 AD3d 867] |
| January 19, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Marie Arena, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Jason P.Weinstein of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Weinberg,J.), rendered March 22, 2005, convicting her of murder in the second degree and tampering withphysical evidence, upon a jury verdict, and sentencing her to indeterminate terms of 20 years tolife imprisonment on the conviction of murder in the second degree, and 1
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, bydirecting that the terms of imprisonment imposed shall run concurrently with each other; as somodified, the judgment is affirmed.
The defendant was charged with murdering her boyfriend in her home in April 2000. Attrial, evidence was adduced that one of the defendant's accomplices forcibly injected the victimwith a fatal dose of heroin while the defendant and other accomplices held the victim down. Twoof the accomplices were alleged to have buried the victim's body in the Massapequa Preserve, anature preserve, two days later. The police recovered the victim's remains from that preservemore than one year later.
The defendant contends, inter alia, that the County Court should have suppressed thestatement she made to law enforcement officials. Once a criminal defendant's indelible right tocounsel attaches, "interrogation is prohibited unless the right is waived in the presence ofcounsel" (People v Grice, 100 NY2d 318, 321 [2003]). A defendant's indelible right tocounsel attaches: (1) upon the formal commencement of a criminal action by the filing of anaccusatory instrument, whether or not the defendant has actually retained or requested a lawyer(see People v West, 81 NY2d 370, 373 [1993]), or (2) "when a person in custodyrequests to speak to an attorney or when an attorney who is retained to represent the suspectenters the matter under investigation" (People v Grice, 100 NY2d at 321). Here, at thetime the [*2]defendant made her statement, formal proceedingshad not commenced. The hearing evidence established that the defendant did not unequivocallyinvoke her right to counsel before making the statement (see People v Ramos, 45 AD3d 702, 703 [2007]; People v Rushion, 26 AD3d 448[2006]). Further, contrary to the defendant's contention, the hearing evidence established that noattorney representing the suspect had entered the matter at the time of the initial investigationinto the victim's disappearance or at any time thereafter. In particular, although there wasevidence that attorney Justin Lite spoke to the police during the missing persons investigation,those conversations were limited to a discussion of Lite's involvement in a prior deed transferand other civil matters. Lite acknowledged that he never told the police not to speak to thedefendant in his absence. It was undisputed that Lite did not contact the police on the day of thedefendant's arrest, when she made the written statement. Moreover, Lite's prior representation ofthe defendant on an unrelated civil matter did not establish that the defendant was represented bycounsel at the time she made the statement (see People v Kent, 240 AD2d 772, 773[1997]; see also Matter of RichardUU., 56 AD3d 973 [2008]). Under these circumstances, the County Court properlydenied suppression of the defendant's statement (see People v Ramos, 45 AD3d 702 [2007]; People v Lyons, 22 AD3d 606[2005]).
The defendant also contends that the prosecutor committed misconduct by asking certainquestions on cross-examination regarding the unrelated murder of the defendant's son-in-law.Any alleged error, however, was harmless, in light of the overwhelming evidence of guilt, andthe fact that there is no significant probability that the alleged error might have contributed to thedefendant's conviction (see People v Crimmins, 36 NY2d 230, 237 [1975]).
The defendant failed to preserve for appellate review her contention regarding the jurycharge on corroboration of accomplice testimony (see CPL 470.05 [2]; People v Lawson, 40 AD3d 657,658 [2007]; People v Edwards, 28AD3d 491, 492 [2006]). In any event, the charge conveyed the correct principles ofcorroboration of accomplice testimony (see CPL 60.22; People v Besser, 96NY2d 136, 143-144 [2001]; People v Lawson, 40 AD3d at 658).
The defendant received meaningful representation by defense counsel (see People vBenevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137 [1981]).
The sentence imposed was excessive to the extent indicated herein (see People vSuitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Mastro, J.P., Fisher, Belen andAustin, JJ., concur.