| People v Bell |
| 2011 NY Slip Op 02023 [82 AD3d 997] |
| March 15, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v EarlBell, Jr., Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Andrew R. Kass of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Freehill, J.),rendered July 28, 2008, convicting him of murder in the second degree (depraved indifferencemurder), murder in the second degree (felony murder), kidnapping in the first degree, andtampering with physical evidence, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant and a codefendant, Monroe B. Bussey, who was tried separately, wereindicted for crimes related to their beating of Jeffrey Beary (hereinafter the victim) in an alleyleading to the backyard of the defendant's home. During the beating, which lasted up to 20minutes, the victim sustained multiple blows, abrasions and lacerations to the head, a fracturedcollarbone, three fractured ribs, and a punctured lung that caused air to enter his chest cavity. Thevictim was stripped of his clothing and his head was wrapped in a blanket secured with tape. Thevictim, while moaning, was placed into the trunk of Bussey's car, driven approximately 18 milesfrom Newburgh to Poughkeepsie, and dumped in a shallow creek. The Medical Examinertestified that the victim vomited inside the blanket and had lived for an hour or two afteraspirating his gastric contents.
The defendant's arrest was based on probable cause, as an identified citizen accused thedefendant of participating in the instant homicide (see People v Mendoza, 49 AD3d 559, 560 [2008]; People v Griffin, 15 AD3d 502[2005]; People v Soto, 279 AD2d 592 [2001]; People v Martin, 221 AD2d 568,568-569 [1995]; People v Pagan, 184 AD2d 738 [1992]). Furthermore, that same citizenidentified the defendant's photograph from a computer-generated photo array shown to her by adetective, which provided the police with an additional basis to arrest the defendant (seePeople v Medina, 293 AD2d 553 [2002]; People v Palacio, 121 AD2d 282 [1986]).
The jury acquitted the defendant of intentional murder (see Penal Law §125.25 [1]), but convicted him of, among other things, depraved indifference murder (seePenal Law § 125.25 [2]). Viewing the evidence in the light most favorable to theprosecution, as we must (see People v Contes, 60 NY2d 620 [1983]), we find that thiscase falls within the small and finite category of cases where the evidence was legally sufficientto establish the defendant's guilt of the crime of depraved indifference [*2]murder. On these facts, there is a valid line of reasoning andpermissible inferences by which a rational jury could have determined that the defendant, whilenot intending to kill, acted with the conscious objective of engaging in "torture or a brutal,prolonged and ultimately fatal course of conduct against a particularly vulnerable victim" (People v Suarez, 6 NY3d 202, 212[2005]; see People v Nunez, 51AD3d 1398 [2008]).
Again viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d at 620), we also find that it was legally sufficient to establish thedefendant's guilt of felony murder (see Penal Law § 125.25 [3]) and kidnapping inthe first degree (see Penal Law § 135.25 [3]) beyond a reasonable doubt. Therestraint of the victim, who was alive prior to the kidnapping, but died approximately two hoursthereafter, was not " 'so much the part of another substantive crime that the substantive crimecould not have been committed without such acts and that independent criminal responsibilitymay not fairly be attributed to them' " (People v Gonzalez, 80 NY2d 146, 153 [1992],quoting People v Cassidy, 40 NY2d 763, 767 [1976]). The acts constituting thekidnapping were discrete acts. These acts did not constitute "a minimal intrusion necessary andintegral to another crime" (People v Gonzalez, 80 NY2d at 153). Thus, the mergerdoctrine is inapplicable in this case (seePeople v Collazo, 45 AD3d 899, 901 [2007]; People v Wegman, 2 AD3d 1333, 1336 [2003]; People vHinton, 258 AD2d 874 [1999]; People v Cannon, 236 AD2d 294, 295 [1997];People v Chronis, 209 AD2d 712, 713 [1994]).
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here,we are satisfied that the verdict of guilt of murder in the second degree (depraved indifferencemurder), murder in the second degree (felony murder), kidnapping in the first degree, andtampering with physical evidence was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The trial court properly granted the People's reverse-Batson challenge (see Batsonv Kentucky, 476 US 79 [1986]; People v Luciano, 10 NY3d 499, 502-503 [2008]; People vKern, 75 NY2d 638 [1990], cert denied 498 US 824 [1990]). The defendant'scontention that the prospective juror in question should have been excused because he was amember in a certain club is without merit, as the defendant did not question the prospective jurorregarding the specifics of his club membership (see People v Clarke, 64 AD3d 612 [2009]; People v Young, 35 AD3d 324,325 [2006]; People v McNair, 26AD3d 245, 246 [2006]).
The defendant's contention that the prosecutor impermissibly shifted the burden of proofbased on certain remarks made during her summation is unpreserved for appellate review, as,when the trial court immediately sustained his objection to the remarks, the defendant failed toseek curative instructions, and subsequently moved for a mistrial on a ground other thanburden-shifting (see CPL 470.15 [2]; People v Jackson, 41 AD3d 498, 499 [2007]; see also People v Ramsey, 48 AD3d709 [2008]).
The sentences imposed were not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's contentions that he was entitled to production of the medical records of twoprosecution witnesses and the police investigative file in this case are unpreserved for appellatereview.
The defendant's remaining contentions are without merit. Dillon, J.P., Florio, Dickerson andCohen, JJ., concur.