| People v Ford |
| 2011 NY Slip Op 09208 [90 AD3d 1299] |
| December 22, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v George FordJr., Appellant. |
—[*1] Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Chenango County (Cawley, J.),rendered June 11, 2009, convicting defendant following a nonjury trial of the crime of murder inthe second degree.
During the early morning hours of July 8, 2007, defendant ran over and killed the 12-year-oldfemale victim with his Ford truck on Will Warner Road, an unlit, dirt road in the Town ofOtselic, Chenango County. Defendant had picked up the victim at her home shortly after 11:00p.m. on July 7, 2007 to babysit his three-year-old child. There was considerable conflictingevidence regarding what transpired between when defendant picked up the victim and when hearrived with her dead body at about 4:30 p.m. on July 8, 2007 at the hospital. Defendantcontended that he accidentally ran over the victim at approximately 12:00 p.m. when heattempted to turn his truck around at a time when she was outside the vehicle to view horses.
Police learned early in their investigation that defendant's wife, suspecting he was engaged inan extramarital affair, had previously placed a global position system (hereinafter GPS) trackingkey in defendant's truck. Information from the GPS, together with additional evidence gatheredduring the investigation, resulted in police concluding that defendant had taken the victim to thelocation of an uninhabited seasonal residence on Will Warner Road and stayed there for threehours (from about 12:00 p.m. to 3:00 p.m.), the victim attempted to [*2]escape from him on foot, he found her a short distance from theseasonal residence and intentionally ran over her with his truck. As a result, although defendanthad initially been arrested for reckless endangerment, he was eventually indicted on a singlecount of murder in the second degree. Following a nonjury trial, County Court found defendantguilty of the charged crime. Defendant was sentenced to a term of 25 years to life in prison andnow appeals.
Defendant initially argues that there was inadequate proof that he intended to kill the victimand, thus, his conviction was not supported by legally sufficient evidence and was against theweight of the evidence. "Generally, including a circumstantial evidence case, the standard of[appellate] review in determining whether the evidence before the [factfinder] was legallysufficient . . . is whether the evidence, viewed in the light most favorable to thePeople, could lead a rational trier of fact to conclude that the elements of the crime had beenproven beyond a reasonable doubt" (People v Rossey, 89 NY2d 970, 971 [1997] [internalquotation marks and citation omitted]; see People v Cancer, 16 AD3d 835, 836-837 [2005], lvdenied 5 NY3d 826 [2005]). Intent may be inferred from a defendant's actions andsurrounding circumstances (see People vRodriguez, 17 NY3d 486, 489-490 [2011]; People v Molina, 79 AD3d 1371, 1376 [2010], lv denied 16NY3d 861 [2011]; CJI2d[NY] Culpable Mental States—Intent).
Defendant and his wife had been at a party on July 7, 2007 during which defendantconsumed alcohol as well as cocaine. He left the party early because of a stomach problem, buthis wife remained at the party. He went to their home, changed into pajama bottoms and,intending to return to the party, picked up the victim to babysit. Upon arriving at his home withthe victim, defendant's wife unexpectedly returned home from the party, so defendant set out todrive the victim about one mile north on Route 26 back to her home. According to a statementthat defendant gave to police, the victim inquired about seeing horses, so he turned right ontoWill Warner Road and headed east until stopping in the vicinity of horses. He claimed that thevictim exited the truck to get a better view and, while making a "k-turn," he got stuck,accelerated the truck, got stuck again and, when he got out, observed that he had run over thevictim. He stated that this occurred around midnight and the delay of over four hours intransporting the victim to the hospital was caused by difficulty putting her body in the truck andgetting lost en route to the hospital.
The police investigation revealed problems with defendant's version of events. The placewhere the victim died was a considerable distance from any horses and in an area of poorvisibility to see the field. Evidence at the scene indicated that the truck hit the victim whiletraveling west (downhill) on Will Warner Road, not east (uphill) as claimed by defendant.Defendant denied being at the nearby seasonal residence on Will Warner Road, but tracks left byhis truck, as well as a hypodermic needle with traces of his blood, were found at such location.The GPS reading of defendant's movements in the truck were, from the time he first picked upthe victim, at odds with his version. Among other discrepancies, the GPS revealed that, whendefendant left his home to take the victim to her home, he turned from Route 26 onto StageRoad. Stage Road runs basically parallel—and south of—Will Warner Road andthen veers north to where Will Warner Road intersects it at a T intersection. He took a left at theintersection of Stage Road and Will Warner Road and headed west on Will Warner Road, thenstopped for about three hours at the seasonal residence.
Shortly before 3:00 p.m., the truck left the residence, turned left (east) on Will Warner Road,traveled for a short distance, turned around and moved rapidly back to the seasonal [*3]residence and continued (now going west) past the residence,steadily decreasing its speed, and slowing to 4 to 6 miles per hour for about a minute. An expertproduced by the People testified that, at 3:03 p.m., while approaching the scene of the victim'sdeath, the GPS deflected to the left, which was consistent with defendant targeting the victim andcrushing her against a south bank of Will Warner Road with the driver's side plow frame of thetruck. Further, there was proof that, prior to 3:00 p.m., defendant had not been at the place onWill Warner Road where the victim was hit by his truck, and the only place where the truck hadstopped that she could have exited was at the seasonal residence. Viewed most favorably to thePeople, there was ample evidence that defendant took the young victim to a secluded area forthree hours in the middle of the night, she escaped his presence on foot, he found and followedher with his truck, and then intentionally ran over her with the truck.
As for defendant's weight of the evidence argument, a different verdict would not have beenunreasonable and, thus, we "must, like the trier of fact below, weigh the relative probative forceof conflicting testimony and the relative strength of conflicting inferences that may be drawnfrom the testimony" (People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotationmarks and citation omitted]). Defendant testified and offered various explanations regarding thePeople's proof, including that he discovered the GPS prior to leaving his home with the victim,threw the GPS (as well as the hypodermic needle) out the truck window at the seasonalresidence, proceeded to where the accident occurred further west on Will Warner Road and, afterthe accident, decided to retrieve the GPS. Although this description made his movements moreconsistent with the GPS, it was at odds with what he had told police on the morning of theincident. County Court rejected defendant's trial explanation for the presence of the GPS at theseasonal home for about three hours. After evaluating the evidence in the record in a neutral lightand according deference to the factfinder's opportunity to view the witnesses, we are unpersuadedthat the verdict was against the weight of the evidence.
Defendant next asserts that all statements and evidence obtained by police after 8:15 p.m. onJuly 8, 2007 should have been suppressed because he was in police custody, but the police lackedprobable cause to detain him. We cannot agree. Testimony at the suppression hearing establishedthat defendant agreed to travel with police from the hospital to the Sheriff's station, he was nothandcuffed, Miranda rights were read to him several times, and he was permittedcigarette breaks during which he went outside. The proof supports County Court's determinationthat defendant was not in custody (seePeople v Langlois, 17 AD3d 772, 773-774 [2005]; People v Kreydatus, 305AD2d 935, 936 [2003], lv denied 100 NY2d 595 [2003]). Moreover, defendant gaveinformation in his oral and written statements to police that provided probable cause of recklessendangerment, including that, despite knowing the young victim was in close proximity to histruck on an unlit road, he nevertheless "nailed" the gas pedal, accelerating the truck rapidly.
With regard to defendant's contention that prosecutorial misconduct—includingcomments about what may have transpired during the three hours at the seasonalhouse—deprived him of a fair trial, we note that this was a nonjury trial and there is noindication that County Court's verdict was influenced by such alleged conduct (see People v Green, 84 AD3d1499, 1500 [2011]). Defendant's assertion that his counsel was ineffective is without merit.Review of the record reveals appropriate pretrial motions, pertinent objections, effective andextensive cross-examination of witnesses, a reasonable defense strategy and the otherwiserendering of meaningful representation (see People v Benevento, 91 NY2d 708, 712-713[1998]). Finally, finding neither an abuse of discretion nor extraordinary circumstances, wedecline to disturb the sentence imposed by County Court (see People v Sanchez, 75 AD3d 911, 914-915[*4][2010], lv denied 15 NY3d 895 [2010]; People v Booker, 53 AD3d 697,704 [2008], lv denied 11 NY3d 853 [2008]).
Rose, J.P., Kavanagh, McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.