| People v Thomas |
| 2012 NY Slip Op 05277 [96 AD3d 1670] |
| June 29, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v BernardThomas, Jr., Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Shirley Troutman, J.), renderedMay 21, 2010. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]). We conclude at the outset thatSupreme Court properly refused to suppress DNA evidence obtained from defendant and certainstatements that defendant made to the police. Contrary to defendant's contention, the DNAevidence was not obtained in violation of his right to counsel. The court properly determined thatdefendant was not in custody until well after that evidence was obtained (see generally Peoplev Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]), and we thusconclude that defendant's waiver of the right to counsel during the interview in which thatevidence was obtained was valid (see People v Davis, 75 NY2d 517, 522-523 [1990]; People v Casey, 37 AD3d 1113,1115-1116 [2007], lv denied 8 NY3d 983 [2007]). Defendant's further contention that hisconstitutional rights were violated by the use of the recorded jailhouse telephone conversationsbetween defendant and his mother is not preserved for our review (see CPL 470.05 [2]),and we decline to exercise our power to review it as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). We conclude, however, that the court erred in refusingto suppress defendant's statements to his wife on the ground that they were subject to the maritalprivilege (cf. People v Felton, 145 AD2d 969, 970 [1988], lv denied 73 NY2d1014 [1989]). The record of the suppression hearing established that those statements wereobtained surreptitiously by the police, inasmuch as defendant and his wife were unaware that thepolice were monitoring their conversation from an adjacent room. Indeed, the statements weredescribed at trial by the police rather than by defendant's wife. Nevertheless, we conclude that theerror is harmless (see generally People v Crimmins, 36 NY2d 230 [1975]).
Defendant further contends that he was denied a fair trial based on various erroneous rulingsof the court at trial. Defendant failed to preserve for our review his contention that hisconstitutional right of confrontation was violated inasmuch as he failed to object to the [*2]questioning implicating that right during the prosecutor'scross-examination of him (see generallyPeople v Dombroff, 44 AD3d 785, 787 [2007], lv denied 9 NY3d 1005 [2007]),and we decline to exercise our power to review that contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). Contrary to defendant's further contention,the court's " 'Sandoval compromise . . . reflects a proper exercise of thecourt's discretion' " (People v Kelly,79 AD3d 1642, 1642 [2010], lv denied 16 NY3d 832 [2011]). Defendant contendsthat the court erred in denying his request to redact the recording of the jailhouse telephone callbetween defendant and his mother that was published by the People on rebuttal, in whichdefendant indicated that he would be willing to serve 10 to 15 years in prison. That contentionlacks merit inasmuch as the court subsequently instructed the jury that it could not consider orspeculate concerning matters related to sentencing or punishment, and the jury is presumed tohave followed the court's instruction (see People v Davis, 58 NY2d 1102, 1103-1104[1983]; People v McCullough, 8AD3d 1122, 1122-1123 [2004], lv denied 3 NY3d 709 [2004]). Defendant did notpreserve for our review his further contention that the court's limiting instruction should havebeen given when the subject recording was played for the jury (see CPL 470.05 [2]), andwe decline to exercise our power to review that contention as a matter of discretion in the interestof justice (see CPL 470.15 [6] [a]). We note that the loss of the subject recording doesnot preclude our review of defendant's present contention because we may glean from the recordthe relevant information from the recording (see People v Jackson, 11 AD3d 928, 930 [2004], lv denied3 NY3d 757 [2004]; see generally People v Yavru-Sakuk, 98 NY2d 56, 60 [2002]).
Even assuming, arguendo, that the court erred in denying defendant's request for a missingwitness charge with respect to two witnesses (see generally People v Savinon, 100 NY2d192, 196-197 [2003]), we conclude that such error is harmless inasmuch as the evidence ofdefendant's guilt is overwhelming, and there is no significant probability that defendant wouldhave been acquitted but for the error (see generally Crimmins, 36 NY2d at 241-242).Contrary to defendant's contention, the court properly refused to charge manslaughter in thesecond degree (Penal Law § 125.15 [1]) as an additional lesser included offense of murderin the second degree (§ 125.25 [1] [intentional murder]) as charged in the indictment."Although we agree with defendant that manslaughter in the second degree may be a lesserincluded offense of intentional murder . . . , we conclude that there was noreasonable view of the evidence that would permit the jury to find that defendant committedmanslaughter in the second degree but did not commit . . . intentional murder" (People v Stanford, 87 AD3d 1367,1368 [2011], lv denied 18 NY3d 886 [2012]; see also People v Gonzalez, 302AD2d 870, 871 [2003], affd 1 NY3d 464 [2004]).
We also conclude that the court properly denied defendant's motions for a mistrial based onthe admission in evidence of defendant's October 28, 1975 statement to the police and theMiranda warnings card that defendant initialed in 1975 with respect to that statement.Those exhibits were properly admitted in evidence subsequent to the testimony of a policedetective who authenticated the documents (see Prince, Richardson on Evidence §9-103 [b] [Farrell 11th ed]). In addition, the court properly refused to grant defendant's motionfor a mistrial based on one of the prosecutor's comments during summation (see People v Stanton, 43 AD3d1299, 1299-1300 [2007], lv denied 9 NY3d 993 [2007]). Defendant failed topreserve for our review his further contention that he was deprived of a fair trial based on severalother alleged instances of prosecutorial misconduct (see CPL 470.05 [2]; People v Rumph, 93 AD3d 1346,1347 [2012]; People v Valez, 256 AD2d 135 [1998], lv denied 93 NY2d 879[1999]). In any event, " 'any alleged [prosecutorial] misconduct was not so pervasive or egregiousas to deprive defendant of a fair trial' " (People v Szyzskowski, 89 AD3d 1501, 1503 [2011]). Thecontention of defendant that he was denied a fair trial by the court's failure to submit to the jurythe issue of the voluntariness of his statements to the police is also not preserved for our reviewinasmuch as defendant did not request that relief at trial, and we decline to exercise our power toreview defendant's contention as a matter of discretion in the interest of justice (see People vTorres, 205 AD2d 350, 350-351 [1994], lv denied 84 [*3]NY2d 873 [1994]). There is no merit to defendant's furthercontention that the court erred in denying his motion for a trial order of dismissal with respect tothe felony murder counts, of which he was acquitted. Defendant speculates that the alleged error"may well have led to a compromise verdict," but "[a] compromise verdict is not a ground forreversal provided the verdict is not repugnant" (People v Fontanez, 254 AD2d 762, 765[1998], lv denied 93 NY2d 852 [1999] [internal quotation marks omitted]), anddefendant does not contend that the verdict is repugnant.
Defendant waived his contention that the court erred in discharging a sworn juror at trial byconsenting to such discharge (see Peoplev Barner, 30 AD3d 1091, 1092 [2006], lv denied 7 NY3d 809 [2006]; cf. People v Noguel, 93 AD3d1319, 1320 [2012]; see also Peoplev Davis, 83 AD3d 860, 861 [2011]; see generally People v Colon, 90 NY2d 824,826 [1997]). Viewing the evidence, the law and the circumstances of this case, in totality and asof the time of the representation, we reject defendant's contention that he was denied effectiveassistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]).Defendant's challenge to the legal sufficiency of the evidence is not preserved for our reviewbecause he failed to renew his motion for a trial order of dismissal after presenting evidence(see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]).In any event, that challenge lacks merit. Viewing the evidence in the light most favorable to thePeople (see People v Contes, 60 NY2d 620, 621 [1983]), "we conclude that defendant'sintent to kill the victim was inferable from his conduct" (People v Lewis, 93 AD3d 1264, 1267 [2012]; see People v Geddes, 49 AD3d1255, 1255-1256 [2008], lv denied 10 NY3d 863 [2008]; cf. Gonzalez, 302AD2d at 871). In addition, viewing the evidence in light of the elements of the crime as chargedto the jury (see People v Danielson,9 NY3d 342, 349 [2007]), we further conclude that the verdict is not against the weight ofthe evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Finally, thesentence is not unduly harsh or severe. Present—Centra, J.P., Fahey, Peradotto, Carni andSconiers, JJ.