| People v Augustine |
| 2011 NY Slip Op 07879 [89 AD3d 1238] |
| November 10, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Travis Augustine,Appellant. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill (Joshua Vinciguerra, New York Prosecutors TrainingInstitute, Inc., Albany, of counsel), for respondent.
McCarthy, J. Appeal from a judgment of the County Court of Greene County (Pulver Jr., J.),rendered June 2, 2009, upon a verdict convicting defendant of the crimes of murder in the seconddegree, aggravated cruelty to animals and criminal possession of stolen property in the fourth degree(two counts).
When defendant was arrested on unrelated charges on July 18, 2008, he was driving the victim'struck and had her cell phone and debit card in his possession. On July 28, 2008, the victim's body wasdiscovered buried on her property, beneath the body of her dog. Defendant was indicted and foundguilty of murder in the second degree, aggravated cruelty to animals and criminal possession of stolenproperty in the fourth degree (two counts). County Court sentenced him, as a second felony offender,to 25 years to life for murder, two years for aggravated cruelty to animals and 2 to 4 years for eachcount of criminal possession of stolen property, all to be served consecutively. Defendant appeals.
County Court properly denied defendant's motion to suppress his statements to police. The narrowissues presented on appeal with regard to this argument are whether defendant was represented bycounsel on his violation of probation charge so that questioning could not take place unless counsel waspresent or he waived his rights in counsel's presence, and whether the police were required to provideMiranda warnings before questioning him on July 27, 2008. "[A] defendant in custody inconnection with a criminal matter for which he [or she] is [*2]represented by counsel may not be interrogated in the absence of his [orher] attorney with respect to that matter or an unrelated matter unless he [or she] waives the right tocounsel in the presence of his [or her] attorney" (People v Lopez, 16 NY3d 375, 377 [2011]). On the other hand, if asuspect in custody is not actually represented by counsel on pending charges and does not requestcounsel, police may question that person about unrelated matters (see People v Hooks, 71 AD3d 1184, 1185 [2010]). To determinewhether the police may question a defendant on matters unrelated to the pending offense, a court mustinquire as to three elements: custody, actual representation and entry of counsel (see People vLopez, 16 NY3d at 382; People v West, 81 NY2d 370, 377 [1993]). The defendantbears the burden of showing that he or she was actually represented by counsel on the earlier charge atthe time of questioning (see People v Rosa, 65 NY2d 380, 387 [1985]).
Here, defendant was in custody on an unrelated violation of probation charge.[FN1]The parties dispute whether defendant was represented by counsel on that charge. Defendantpresented the Town Court arraignment memorandum on which the court had checked the "Yes" boxnext to "[c]ounsel assigned" and had written in "Public Defender[']s Office." On the other hand, theTown Justice testified that, upon advising defendant of his right to counsel at arraignment, defendantstated that he "didn't think he needed an attorney . . . or wasn't sure that he wanted anattorney." The Town Justice testified that he listed the Public Defender's office to permit that office todo an intake and determine if defendant was eligible for services, to be sure that defendant could berepresented when he appeared in court again. Defendant had been represented by the PublicDefender's office on the charge that resulted in him being placed on probation, and an attorney fromthat office appeared with him at his next appearance on the violation of probation charge, whichoccurred after the two interrogations at issue. Given this equivocal evidence regarding representation,defendant did not meet his burden of showing that he was represented on the probation violation chargeat the time of questioning.
Even if—despite evidence to the contrary—the arraignment memorandum constitutedassignment of counsel such that defendant was represented on that charge, there was no proof of entryby counsel. Entry requires "actual appearance or communication by an attorney" (People vGrice, 100 NY2d 318, 322 [2003]). The proof showed that defendant did not request counsel onthe pending charge. Testimony and documents from the jail showed that the facility did not permitattorneys to call inmates due to a lack of personnel, and no one from the Public Defender's officevisited defendant at any time prior to the questioning at issue. Before each interview, defendant signed aform agreeing to speak with police and acknowledging that he had a right to counsel, but he did notindicate to the police that he had counsel. Prior to the interview on July 29, 2008, the police called theDistrict Attorney, who then called the Town Justice and confirmed that defendant did not request orhave counsel on the violation of probation charge. Because defendant did not show that he wasrepresented by counsel or entry by counsel, his rights were not violated (see People vBlanchard, 279 AD2d 808, 810 [2001], lv denied 96 NY2d 826 [2001]; People vVaughn, 275 AD2d 484, 489 [2000], lv denied 96 NY2d 788 [2001]).
Additionally, the police were not required to Mirandize defendant prior to the July 27, 2008 [*3]interview because the questioning was investigatory rather thanaccusatory; defendant was not a suspect in the missing person case at that time and was merely beingquestioned for information that could help determine the victim's whereabouts (see People vWinchell, 98 AD2d 838, 839 [1983], affd 64 NY2d 826 [1985]; see also Matter ofMelinda I., 110 AD2d 991, 992 [1985]; compare People v Ripic, 182 AD2d 226,231-232 [1992], appeal dismissed 81 NY2d 776 [1993]). Thus, County Court did not err indenying defendant's suppression motion.
County Court did not deny defendant his right to counsel after he requested new counsel. While adefendant is entitled to a different assigned counsel upon a showing of good cause (see People v Porto, 16 NY3d 93, 100[2010]; People v Nunez, 35 AD3d902, 903 [2006], lv denied 8 NY3d 883 [2007]), defendant's letter to the court containedgeneralized complaints about counsel. The court received the letter less than a week prior to trial, soany substitution in this complicated case would have delayed the trial for months. Defendant contendsthat the court deprived him of an opportunity to explain his concerns, but he agreed with the court'sadvice that he should remain silent to protect his interests. Considering the lack of factual support fordefendant's complaints and the timing of his request, along with counsel's adequate pretrialperformance, the court did not deprive defendant of his right to counsel (see People v Porto,16 NY3d at 100; People v Linares, 2NY3d 507, 510-512 [2004]).
Defendant's convictions were not against the weight of the evidence.[FN2]When he was arrested, defendant was driving the victim's truck and possessed her debit card. Bankrecords show that the debit card was used numerous times in the city where defendant traveled.Defendant admitted that he used the card. Although defendant averred in one statement that he wasallowed to use the card because the victim put some of his money in her bank account, he told thepolice in his first two statements that he used the card without the victim's permission. Contrary to hisstatements wherein he asserted that he bought the victim's truck from her and the receipt was above thevisor, no such receipt was located in the vehicle, and the title in the vehicle was not signed over to himby the victim. Defendant told his friends that he was not supposed to have the victim's truck. He alsotold his half brother to sell the truck for scrap. This evidence supported the jury's verdict findingdefendant guilty of both counts of criminal possession of stolen property in the fourth degree, forunlawfully possessing the victim's debit card and vehicle (see Penal Law § 165.45 [2],[5]).
The victim was last seen by a friend on July 3, 2008 and last worked on that day as well. She wasscheduled to work the next day and several other days, but never showed up or called in to work.Around the time of her disappearance, defendant was driving the victim's truck and possessed her cellphone as well as her debit card. He called his half brother and asked how to dispose of a body.Consistent with the advice he received, the victim's body was buried beneath the body of an animal.Defendant left the area on July 6, 2008. When he saw his half brother, he first told a story about beingattacked by the victim with a gun, but then stated that he shot her in the face. The pathologist whoperformed the autopsy on July 29, 2008 testified that the victim had been dead for at least a week,possibly as much as several weeks. The single gunshot to the [*4]headindicated an intentional killing. Defendant told police that ballistics would establish his innocence, but thepolice had not revealed that the victim had been shot.
Defendant contends that evidence points to the victim's son as the culprit. The son moved out of thearea on July 4, 2008 and sold his van for scrap around that time. He returned on July 7, 2008 for oneday only, and was seen on the victim's property that day, although he also had lived there previously. Atthat time, the son sold a gun from the victim's camper, although that weapon was not used in this crime.The son could not reach the victim for several weeks, but did not report her missing to the police untilJuly 28, 2008, when he returned to the area. He was seen coming from the victim's property withmuddy clothes. He found the grave and dug up the dog and the victim, informing police after eachdiscovery. Some of the son's statements to police contained inaccurate information. Despite thisalternate theory posited by defendant, the proof showed that the son had no reason to kill his motherand they had a good relationship, with the only contrary evidence coming from defendant's self-servingand unsupported statements. Viewing the evidence in a neutral light and giving deference to the jury'scredibility determinations (see People vBarringer, 54 AD3d 442, 443 [2008], lv denied 11 NY3d 830 [2008]), defendant'sconviction for murder was not against the weight of the evidence.
Testimony from defendant's half brother about his advice to bury a human body beneath an animalmakes it likely that defendant also killed the dog. One of defendant's friends testified that it looked likedefendant had a dog bite on his wrist around the time that the victim disappeared. The bullets used tokill the victim and the dog were consistent with each other and with having been fired from a riflelocated in the victim's camper. The wildlife pathologist who performed the necropsy testified that thedog had a full stomach and was in good health prior to death. This testimony dispelled the suggestionthat the dog was put down because of illness, thus rendering the death unjustifiable. While defendantcontends that the People failed to show "aggravated cruelty" as required by the statute, five shots to thehead of a healthy dog—when any one of those shots would have been fatal—qualifies asconduct "carried out in an especially depraved or sadistic manner" (Agriculture and Markets Law§ 353-a [1]; see People v Garcia,29 AD3d 255, 261 [2006], lv denied 7 NY3d 789 [2006]). Thus, the jury's verdict wasnot against the weight of the evidence.
Peters, J.P., Spain, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Defendant was also in jail on aresentence for harassment in the second degree, after failing to pay the fine that was his originalsentence. Defendant does not contend that he was represented by counsel on that charge, and thetranscript from his resentencing confirms the absence of counsel.
Footnote 2: To the extent that defendantchallenges the legal sufficiency of the evidence on some counts, his arguments are unpreserved for ourreview (see People v Gray, 86 NY2d 10, 19-22 [1995]; People v Nesbitt, 69 AD3d 1109, 1110-1111 [2010], lv denied14 NY3d 843 [2010]).