| People v Wilson |
| 2012 NY Slip Op 01770 [93 AD3d 483] |
| March 13, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JamesWilson, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (David M. Cohn of counsel), forrespondent.
Judgment, Supreme Court, New York County (Richard D. Carruthers, J., at hearing; RonaldJ. Zweibel, J., at jury trial and sentencing), rendered April 17, 2009, as amended April 29, 2009,convicting defendant, of murder in the first degree, and sentencing him to a term of life withoutparole, unanimously affirmed.
The court properly denied defendant's suppression motion. There is no basis for disturbingany of the hearing court's credibility determinations, including its acceptance of the leaddetective's testimony notwithstanding his delay in recording certain information, its rejection of aportion of another detective's testimony as based on faulty recollection, and its refusal to creditdefendant's version of his interactions with the police.
The hearing court correctly determined that defendant did not make an unequivocal requestfor a lawyer during police questioning. Before defendant made his first statement to the police,which was exculpatory, he said that "maybe" he wanted a lawyer. This was ambiguous andequivocal both on its face and in the surrounding context, and it was not sufficient to invoke theright to counsel (see Davis v United States, 512 US 452, 459 [1994]; People vGlover, 87 NY2d 838, 839 [1995]; People v Hicks, 69 NY2d 969, 970 [1987]).
Before defendant made his second statement, which was inculpatory, he made anotherremark about getting a lawyer. However, this remark was clearly intended to be facetious, and inany event, it only expressed a possible intention to get a lawyer in the future, depending on acondition that had not yet occurred. Accordingly, it did not invoke defendant's right to counsel.
Furthermore, the record also supports the hearing court's finding that defendant was not incustody until after he made his inculpatory statement (see People v Yukl, 25 NY2d 585[1969], cert denied 400 US 851 [1970]; see also Stansbury v California, 511 US318 [1994]). A suspect who is not in custody when he or she invokes the right to counsel canwithdraw the request and be questioned by the police (People v Davis, 75 NY2d 517, 522[1990]). The record establishes that defendant effectively withdrew any possible request forcounsel that he may have made.
Finally, the hearing evidence also established that, regardless of the admissibility ofdefendant's statements, the recovery of physical evidence was generally attenuated from anyviolation of defendant's right to counsel. To the extent there was any error in the receipt of a[*2]knife, that error was harmless under the circumstances.
Turning to issues relating to the trial, we find no basis for reversal. We agree with defendantthat his trial testimony did not open the door to an inquiry that had been precluded under thecourt's Sandoval ruling. However, any error in the court's modification of itsSandoval ruling was harmless (see People v Crimmins, 36 NY2d 230 [1975]).There was overwhelming evidence of defendant's guilt, and there is no reasonable possibility thatthe jury would have accepted his incredible testimony, in which he attempted to explain hispossession of the victim's property (seePeople v Hall, 18 NY3d 122, 132 [2011] [considering defendant's "ridiculousexplanation" in harmless error analysis]). Furthermore, the offending evidence was cumulative toother impeachment material.
The court properly instructed the jury on defendant's status as an interested witness.Defendant only argued that the court's charge should not have identified him as an interestedwitness as a matter of law. He did not preserve any other objection to the phrasing of theinstruction, and we decline to review such claim in the interest of justice. As an alternativeholding, we also reject it on the merits. The charge did not undermine the presumption ofinnocence, suggest that defendant had a motive to lie, or intimate that defendant should not bebelieved. Instead, it simply referred to defendant as an interested witness and permitted the juryto consider whether any witness's interest or lack of interest in the outcome of the case affectedthe witness's truthfulness (see People vBlake, 39 AD3d 402, 403 [2007], lv denied 9 NY3d 873 [2007]). Defendant'spresent challenges to the phrasing of the instruction go to form rather than substance, and we donot find any constitutional deficiencies (see Reagan v United States, 157 US 301,305-311 [1895]; Hicks v United States, 150 US 442, 451-452 [1893]).
After considering the factors set forth in People v Taranovich (37 NY2d 442, 445[1975]), we conclude that defendant was not deprived of his constitutional right to a speedy trial.
The court properly denied defendant's CPL 330.30 (2) motion to set aside the verdict on theground of juror misconduct (see People v Rodriguez, 100 NY2d 30, 35 [2003]). Thecourt conducted a thorough hearing, and we find no basis for disturbing its credibilitydeterminations. The juror made Facebook postings that merely advised her friends that she wason a jury, but did not discuss the case in any way. Unfortunately, some of her friends madefoolish replies relating to trials in general that defendant characterizes as "inflammatory."However, the juror testified unequivocally that she was not affected by these comments, that shedid not discuss the case with anyone during the trial, and that she had decided the caseimpartially, based only on the evidence.
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Saxe, Acosta,DeGrasse and Román, JJ.