| People v McCoy |
| 2011 NY Slip Op 07871 [89 AD3d 1218] |
| November 10, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Tammara McCoy,Also Known as Kesha, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered March 19,2009 in Albany County, upon a verdict convicting defendant of the crimes of murder in the seconddegree and conspiracy in the second degree.
On November 14, 2007, the City of Albany Police Department received a call that shots had beenfired in the vicinity of 637 South Pearl Street in the City of Albany. Upon arriving at the scene, thepolice found the victim lying on the ground dead from an apparent gunshot wound. As they weresecuring the crime scene, the police were approached by defendant, who stated that the victim might beher estranged husband. Subsequently, after the police completed their investigation, defendant wasarrested and charged with conspiring with one Jamar Johnson to murder her husband. An indictmentwas later filed, charging defendant with, among other crimes,[FN1]murder in the second degree and conspiracy in the second degree.[FN2]After a jury trial, [*2]defendant was convicted of these charges, andsentenced to an aggregate prison term of 25 years to life. Defendant now appeals.
There are three principal issues that have been raised by defendant in this appeal. The first is thatstatements she made on the night of her husband's death should have been suppressed and not admittedinto evidence at her trial because she had been subjected to a custodial interrogation while at policeheadquarters before being advised of her constitutional rights.
As a general rule, statements obtained by the police from a suspect who is in custody are onlyadmissible if made after the individual has been advised of his or her constitutional rights, and has madea knowing and intelligent waiver of them (seePeople v Miller, 82 AD3d 1278, 1279 [2011], lv denied 16 NY3d 861 [2011]; People v Culver, 69 AD3d 976,976-977 [2010]). A suspect's custodial status is a fact-driven determination that is largely dependenton the circumstances that existed when the statements were made and focuses on "the amount of timethe person spent with the police, whether his or her freedom of action was significantly restricted, thelocation of the questioning and the atmosphere under which it was conducted, the person's degree ofcooperation, whether he or she was apprised of his or her constitutional rights and whether thequestioning was investigatory or accusatory in nature" (People v Hardy, 223 AD2d 839, 840[1996]). The burden is on the People to prove beyond a reasonable doubt that the individual was not incustody before Miranda warnings were given (see People v Baggett, 57 AD3d 1093, 1094 [2008]), and the ultimatequestion to be answered is "whether a reasonable person innocent of any wrongdoing would havebelieved that he or she was not free to leave" at the time he or she was being questioned (People v Paulman, 5 NY3d 122, 129[2005]; see People v Lewis, 83 AD3d1206, 1207-1208 [2011], lv denied 17 NY3d 797 [2011]; People v Baggett, 57AD3d at 1094).
At the Huntley hearing, the People offered testimony from two police officers who statedthat after arriving at the scene of the shooting, they were approached by defendant who told them thatshe believed her estranged husband may have been the victim of the shooting. As a result of thisdisclosure, defendant was asked, and agreed, to accompany the police to police headquarters. Shearrived at police headquarters at approximately 11:45 p.m. and was escorted to a room, where shewas interviewed by Detective Thomas Kubisch regarding her activities that evening and her contactwith the victim prior to the shooting. At the outset of the interview, defendant consented to the policeexamining her cell phone and later permitted them to go and enter her apartment to retrieve a phonecharger, as well as a photograph of a man with whom she claimed she had just ended a relationship.
As for her activities that evening, defendant told Kubisch that she had been with the [*3]victim and had returned with him in her car to her apartment complex justprior to the shooting to check on her three young children. Defendant stated that she left the victim inher car when she went to her apartment and, upon her return, found that her husband was gone and thedoor to the car was open, after which time she had no contact with him. At no time during this initialinterview—or when she was transported to police headquarters—was defendanthandcuffed or restrained by the police, and she was never told that she was under arrest or that shecould not leave police headquarters. In addition, defendant was often left alone in the interview room,offered food and drink throughout the evening while she was being questioned, allowed to use thebathroom and given access to a telephone.
Approximately three hours after defendant had arrived at police headquarters, Kubisch concludedthat she had not been completely truthful about her activities that evening or her contact with herestranged husband and decided to advise defendant of her constitutional rights. He informed defendantof the Miranda warnings and defendant signed a form acknowledging that she understood herrights and was willing to waive them. Defendant continued to cooperate with the police in their ongoinginvestigation and ultimately told them that she was presently in a relationship with Johnson. She statedthat Johnson, on a prior occasion, had threatened to kill her estranged husband and acknowledgedbeing in telephone contact with Johnson throughout the evening while she was with the victim prior tothe shooting. Defendant specifically recalled Johnson telling her during one of the phone calls to bringthe victim to a certain location so that he could "pop him." Defendant admitted leaving her husband inthe car outside her apartment, knowing that Johnson was in the area, but claimed that it had nothing todo with Johnson's request and, throughout her interviews with the police, she denied any complicity inher husband's murder. On these facts, we agree with Supreme Court that defendant was not in custodyprior to being given her Miranda warnings and the statements she made to the police at policeheadquarters were properly admitted into evidence at trial (see People v Richards, 78 AD3d 1221, 1224-1225 [2010], lvdenied 15 NY3d 955 [2010]; People vLanglois, 17 AD3d 772, 773-774 [2005]). As for defendant's claim that her cell phone andphone charger were illegally seized by the police, we note nothing in the record that would indicate thather consent to the seizure of these items was anything but voluntary.
Defendant also claims that her conviction for conspiracy in the second degree was against theweight of the credible evidence introduced at trial.[FN3]In conducting a weight of the evidence review where a different verdict would not have beenunreasonable, we "must, like the trier of fact below, weigh the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from the testimony" (People v Romero, 7 NY3d 633, 643[2006] [internal quotation marks and citations omitted]; see People v Danielson, 9 NY3d 342, 348 [2007]). Further "we accordgreat deference to the jury's conclusions regarding the credibility of the witnesses and the weight to begiven their testimony" (People v Scott, 47AD3d 1016, 1017 [2008], lv denied 10 NY3d 870 [2008] [internal quotation marks andcitations [*4]omitted]).
Here, the charge of conspiracy in the second degree, as it pertains to defendant, required that it beproven at trial that she had entered into an agreement with Johnson to murder her husband and that anovert act was committed by her or Johnson to achieve that objective (see Penal Law§§ 105.15, 105.20). While defendant claims that she tried to dissuade Johnson fromattacking her husband, the People presented credible evidence that, prior to the shooting, she hadagreed to assist Johnson in his plan to kill her husband and played both an instrumental andindispensable role in carrying out this murder. In that regard, we again note that defendant was incontact with Johnson throughout the night of the murder, and phone records introduced into evidence attrial established that she spoke with Johnson by phone immediately before she left the victim alone inher car while it was parked outside her apartment and shortly after the shooting took place.Eyewitnesses testified to seeing defendant walking away from her car toward her apartment onlymoments before hearing gunshots, and then observing an unknown man with a gun in his hand chasinganother man from where defendant's car had been parked. In addition, it is uncontroverted thatdefendant obtained a room for the victim at a local hotel several days prior to the shooting and wasaware that the victim, when he arrived in Albany, was in possession of a large sum of money. It wasalso established at trial that on the day of the shooting, defendant had been at the victim's hotel and hadgained access to his room while he was apparently not there. Later, after defendant was arrested, asignificant amount of money belonging to the victim was found by the police in a plastic bag secreted ina closet in defendant's apartment. Finally, Johnson, when apprehended, was found to have a substantialsum of money on his person and admitted to the police that he had, in fact, shot and killed the victim.This evidence, coupled with the significant inconsistencies that emerged during the course of the policeinvestigation in the various statements that defendant made on the night of the murder, provided amplesupport for the jury's conclusion that she had conspired with Johnson to murder her estranged husbandand was indeed guilty of conspiracy in the second degree.
Finally, we reject defendant's claim that the photographs retrieved from a cell phone found next tothe victim's body were not properly authenticated and should not have been admitted into evidence attrial. "[W]here no witnesses are available who have viewed the subject matter portrayed, validalternative grounds may exist for authenticating the photograph and admitting it into evidence, such astestimony, especially that by an expert, tending to establish that the photograph truly and accuratelyrepresents what was before the camera" (People v Byrnes, 33 NY2d 343, 349 [1974]). Whilethe individual who took these photographs—presumably the victim—was not available totestify at trial, competent evidence was presented as to how the photographs were retrieved from thecell phone and how data in the phone, including the photographs, could not have been altered after thephone was recovered by the police near the victim's body at the scene of the shooting. Moreover, eachphotograph depicted large sums of money on a table similar to that located in the hotel room where thevictim was staying, and each was date stamped November 13, 2007—one day prior to theshooting. We also note that there was no dispute at trial that the victim, at the time of his death, was inthe possession of a large sum of money. As a result, any prejudice that may have resulted from theadmission of these photographs into evidence at trial was harmless. Defendant's remaining contentionshave been considered and have been found to be without merit.
Mercure, J.P., Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: Defendant was also charged withdepraved indifference murder and manslaughter in the first and second degrees. At trial, Supreme Courtdismissed the depraved indifference murder charge, and the parties agreed that the two manslaughtercharges would not be submitted to the jury.
Footnote 2: Johnson was also charged in theindictment and, after a separate trial, was convicted of murder in the second degree, conspiracy in thesecond degree and criminal possession of a weapon in the second and third degrees. This Court hasaffirmed that judgment of conviction (Peoplev Johnson, 79 AD3d 1264 [2010], lv denied 16 NY3d 832 [2011]).
Footnote 3: While defendant argues that thisconviction was not based on legally sufficient evidence, this claim has not been preserved for our reviewbecause a motion to dismiss on this specific ground was not made at trial (see People v Heaney, 75 AD3d836-837 [2010], lv denied 15 NY3d 852 [2010]; People v Malcolm, 74 AD3d 1483, 1484 n [2010], lv denied15 NY3d 954 [2010]).