| People v Hooks |
| 2010 NY Slip Op 01707 [71 AD3d 1184] |
| March 4, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Kim M.Hooks, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the Supreme Court (Connolly, J.), rendered May 3,2007 in Albany County, upon a verdict convicting defendant of the crimes of criminal mischiefin the third degree and criminal impersonation in the second degree.
Defendant damaged the victim's vehicle by scratching it while it was parked in a departmentstore parking lot. After police began investigating, defendant called the police station,identifying herself as the victim, and informed them that she did not want to pursue criminalcharges. As a result of her conduct, and an existing order of protection in favor of the victim,defendant was indicted on criminal contempt in the first degree, criminal mischief in the seconddegree and criminal impersonation in the second degree. County Court (Breslin, J.) denieddefendant's motion to suppress two written statements she gave to the police. Following trial inSupreme Court (Connolly, J.), a jury acquitted defendant of criminal contempt and criminalmischief in the second degree, but convicted her of the lesser included offense of criminalmischief in the third degree and criminal impersonation in the second degree. Defendant appeals.
County Court properly denied defendant's suppression motion. The state constitutional rightto counsel can indelibly attach in several ways, including the commencement of formal [*2]proceedings by the filing of an accusatory instrument (seePeople v Samuels, 49 NY2d 218, 221 [1980]; see also CPL 100.05, 1.20 [1]). Asopposed to limitations on police questioning when the right to counsel indelibly attaches in otherways, when "the right to counsel arises solely due to the commencement of formal proceedings(i.e., the suspect is not represented on pending charges and does not request counsel while incustody), police may question a suspect on an unrelated matter in the absence ofcounsel" (People v Hilliard, 20AD3d 674, 676-677 [2005], lv denied 5 NY3d 853 [2005]; see People vRuff, 81 NY2d 330, 333-335 [1993]). Here, defendant was in custody and formalproceedings had been commenced against her in the City of Albany, but she did not have counselon that matter and did not request counsel while being questioned regarding the instant unrelatedcrimes, which were committed in the Town of Bethlehem, Albany County. Hence, the police didnot violate her right to counsel by questioning her. Defendant was orally advised of herMiranda rights, waived those rights and agreed to speak to the police before signing twowritten statements. Under the circumstances, the court correctly denied her motion to suppressthose statements.
The convictions were based upon legally sufficient evidence and not against the weight ofthe evidence. In one of her statements, defendant admitted that she scratched the victim's car.The victim testified that defendant had no right to damage the vehicle, and both the victim and adetective testified that the car had deep scratches all along both sides and on the hood. Regardingthe value of the damage, the victim testified that she received three estimates and had the repairsperformed by the shop with the lowest estimate, approximately $2,600. That shop's writtenestimate was admitted into evidence. This evidence was legally sufficient to prove that defendantdamaged the victim's car in an amount in excess of $250 as required to prove criminal mischiefin the third degree (see Penal Law § 145.05 [2]; see also People v Shannon, 57 AD3d1016, 1016 [2008]).
In defendant's other written statement, she admitted to pretending to be the victim whencalling the police in an effort to close the criminal case against her, as well as leaving her homephone number for the police to ostensibly contact the victim. The detective testified that he twicecalled the number that defendant left with the police and talked to a woman who identifiedherself as the victim. During the second call, the victim was actually present at the policestation—so the person the detective spoke to could not possibly have been thevictim—and the victim stated that she had not previously spoken to the detective byphone. This evidence was legally sufficient to establish defendant's guilt of criminalimpersonation in the second degree (see Penal Law § 190.25 [1]). While defendantraised some questions about the victim's motives and pointed out shortfalls in the policeinvestigation, if we give deference to the jury's credibility determinations, as we must, theverdict on both counts was not against the weight of the evidence (see People v Caruso, 34 AD3d863, 864-865 [2006], lv denied 8 NY3d 879 [2007]).
The People "have no constitutional or statutory duty to acquire, or prevent the destruction of,evidence generated and possessed by private parties" (People v Banks, 2 AD3d 226, 226 [2003], lv denied 2NY3d 737 [2004]; see People vBrooks, 57 AD3d 445 [2008], lv denied 12 NY3d 814 [2009]). Thus, the Peoplewere not required to obtain the department store's surveillance videotape of the parking lot andwere not responsible for the store's destruction of the tape after 90 days pursuant to its usualbusiness policy. In any event, defendant failed to show that the tape was exculpatory, and therecord established that the video did not show anyone scratching the victim's car (see Peoplev Scott, 309 AD2d 573, 574 [2003], lv denied 2 NY3d 806 [2004]).[*3]
Defendant received the effective assistance of counsel.Her only allegations of ineffectiveness are her initial counsel's failure to inspect the damage tothe vehicle and obtain pictures of it, and failure to obtain a copy of the surveillance videotapefrom the department store. Counsel may have purposely avoided obtaining pictures of thevehicle because photographic evidence of the damage may have negatively influenced the jurors.While the videotape may have shown where the victim parked her car, so as to impeach herinconsistent statements on where it was in the parking lot, trial testimony established that thetape did not show anyone damaging a car. Considering this testimony, the tape was of onlyminimal value. Initial counsel reasonably focused on attempting to secure a preindictment plea toprevent defendant's exposure to mandatory prison time as a second felony offender. As counselwas pursuing a reasonable strategy, and trial counsel obtained an acquittal on more than onecharge, we cannot say that defendant was deprived of effective assistance (see People v Madison, 31 AD3d974, 975 [2006], lv denied 7 NY3d 868 [2006]).
Mercure, J.P., Spain, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.