| People v Castor |
| 2012 NY Slip Op 06663 [99 AD3d 1177] |
| October 5, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Stacey R.Castor, Appellant. (Appeal No. 1.) |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedMarch 5, 2009. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree, attempted murder in the second degree and offering a false instrument for filing in thefirst degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting her followinga jury trial of, inter alia, murder in the second degree (Penal Law § 125.25 [1]), based uponthe death of her second husband from poisoning with antifreeze, and attempted murder in thesecond degree (§§ 110.00, 125.25 [1]), based upon the poisoning of her daughterwith a combination of pharmaceutical drugs and alcohol. In appeal No. 2, defendant appeals froman order denying her motion pursuant to CPL 440.10 seeking to vacate the judgment, inter alia,on the ground that her statement to the police on September 7, 2007 was taken in violation of herindelible right to counsel.
Defendant's second husband was found dead on August 22, 2005, and his death frompoisoning with antifreeze was determined by the Medical Examiner to be a suicide. More thantwo years later, on September 7, 2007, defendant agreed to discuss her husband's death with thepolice, and she waived her Miranda rights and provided a statement. Two days beforespeaking to defendant, the police had received the results of an autopsy performed on theexhumed body of defendant's first husband, who had died in 2000, which established that he toohad died from poisoning with antifreeze. On September 14, 2007, defendant's youngest daughterfound her 20-year-old sister, defendant's eldest daughter (daughter), unresponsive in her bedroomas a result of ingesting prescription drugs and alcohol. In a one-page typed document that waspurported to be the daughter's suicide note (purported suicide note), it was stated that thedaughter had killed both her father, defendant's first husband, and her stepfather, defendant'ssecond husband. When the daughter regained consciousness, she denied that she had attempted tokill herself and that she had written the purported suicide note.[*2]
We address first defendant's contentions in appeal No. 1.We reject defendant's contention that County Court abused its discretion in permitting the Peopleto introduce evidence in their direct case of the uncharged murder of defendant's first husband.Contrary to defendant's contention, the court properly determined that there was clear andconvincing evidence that defendant committed that uncharged murder. It is well established thatwhere, as here, the identity of the perpetrator of the uncharged crime is unknown, the court mustdetermine that there is clear and convincing evidence of both a unique modus operandi anddefendant's identity as the perpetrator of the uncharged crime before allowing the People topresent evidence of the uncharged crime on the issue of identity in their direct case againstdefendant (see People v Robinson, 68 NY2d 541, 550 [1986]). First, we conclude that"the People presented clear and convincing evidence that defendant committed the [unchargedmurder of her first husband] by using a distinctive and unique modus operandi," i.e., poisoningwith antifreeze (People v Curry, 82AD3d 1650, 1650 [2011], lv denied 17 NY3d 805 [2011]; see People vBeam, 57 NY2d 241, 252-253 [1982]; cf. People v Crawford, 4 AD3d 748, 749 [2004], lv denied2 NY3d 797 [2004]). Second, we conclude that the People presented clear and convincingevidence that defendant was the perpetrator of her first husband's uncharged murder. ThePeople's evidence at trial establishes that defendant had purchased a life insurance policy on thelife of her first husband; that the daughter was 12 years old when her father, defendant's firsthusband, died and thus was unlikely to have committed the fairly sophisticated murder of herfather; that defendant had refused to consent to an autopsy of her first husband, who was 38 yearsold at the time of his death; that the purported suicide note referenced the fact that defendant'sfirst husband also had ingested rat poison, a fact that could be known only by the person whokilled him; and that defendant admitted to having rat poison in their home.
Contrary to defendant's further contention, the court properly determined that the evidence ofthe uncharged murder was inextricably interwoven with the evidence of the charged crimesinasmuch as the uncharged murder was discussed in the purported suicide note and was probativeevidence of the motive for the attempted murder of the daughter. In order "[t]o be inextricablyinterwoven . . . the evidence must be explanatory of the acts done or the words usedin the otherwise admissible part of the evidence" (People v Ventimiglia, 52 NY2d 350,361 [1981]). Here, the People's expert explained that the first draft of the purported suicide notehad been written on the family's computer four days after defendant learned that the body of herfirst husband had been exhumed. Further, the purported suicide note explained why the daughterkilled both of defendant's husbands and included numerous references to the uncharged murder.Thus, the evidence of the uncharged murder provided necessary background information toexplain references to that crime in the purported suicide note, was probative of the motive for theattempted murder of defendant's daughter, and placed the timing of the writing of the purportedsuicide note and attempted murder of the daughter "in context" (People v Dorm, 12 NY3d 16, 19[2009]; see People v Carey, 92AD3d 1224, 1225 [2012], lv denied 18 NY3d 992 [2012]).
Defendant failed to preserve for our review her contention that the court erred in failing tocharge the jury that it could consider evidence of the uncharged murder only if it determined thatthe People proved by clear and convincing evidence that defendant killed her first husband (see People v Perez, 89 AD3d1393, 1394 [2011], lv denied 18 NY3d 961 [2012]). In any event, that contentionlacks merit inasmuch as the court, rather than the jury, must make the determination whether thePeople have presented clear and convincing evidence that defendant was the perpetrator of theuncharged crime (see Robinson, 68 NY2d at 550). We further conclude that the courtproperly instructed the jury that the evidence of the uncharged murder could be considered onlyfor the limited purpose of determining the identity of the "perpetrator in this case" (see id.at 549-550).
We reject defendant's contention that the court erred in refusing to suppress a statement shemade to the police on September 14, 2007 at the hospital regarding the substances that the [*3]daughter may have ingested. The People correctly concede thatdefendant's attorney had advised the police on September 12, 2007 that he had been retained bydefendant in connection with the investigation of the death of defendant's second husband andthat she was not to be questioned concerning that matter. We conclude, however, that the recordestablishes that the police did not question defendant regarding her second husband's death, norcan it be said that the discussion regarding the daughter's condition would "inevitably elicitincriminating responses" regarding the second husband's death (People v Cohen, 90NY2d 632, 638 [1997]).
Defendant's contention that the court erred in refusing to suppress items seized from herhome on September 14, 2007 because the police had entered her home without her consent whilewaiting for the search warrant is without merit. We note as a preliminary matter that thepurported suicide note was not seized by the police, but instead was in their possession becausedefendant requested that a police officer take the note from her younger daughter (see Peoplev Carrier, 270 AD2d 800, 801 [2000], lv denied 95 NY2d 864 [2000]). With respectto the items seized from defendant's home, we conclude that, because the police initially enteredthe home with defendant's consent in response to the 911 call regarding the daughter, they wereentitled to remain there while awaiting the warrant (see generally People v Lubbe, 58 AD3d 426, 426 [2009], lvdenied 12 NY3d 818 [2009]). In any event, the police had probable cause to believe thatdefendant was responsible for the daughter's condition and were therefore justified in securingthe residence to prevent the removal or destruction of evidence (see People v Osorio, 34 AD3d1271, 1272 [2006], lv denied 8 NY3d 883 [2007]). The record establishes that nosearch occurred before the warrant arrived and that the police entered defendant's home only toread the purported suicide note to the person preparing the search warrant application and toprovide water to defendant's dogs (seePeople v Pinkney, 90 AD3d 1313, 1316 [2011]).
We reject defendant's contention that the court erred in permitting a police witness to testifythat, when he questioned the daughter at the hospital, she denied that she had attempted to killherself and denied that she had written a suicide note. We conclude that the daughter's statementswere admissible under the excited utterance exception to the hearsay rule because they weremade shortly after she became coherent, i.e., "before there [had] been time to contrive andmisrepresent" whether she had attempted to kill herself and written the purported suicide note (People v Johnson, 1 NY3d 302,306 [2003] [internal quotation marks omitted]). We also reject defendant's contention that thecourt erred in refusing to permit defendant's friend to testify with respect to a statement made bythe daughter to defendant's friend inasmuch as that statement was too ambiguous to beconsidered a statement against penal interest (see People v Simmons, 84 AD3d 1120, 1121 [2011], lv denied18 NY3d 928 [2012]). In any event, the daughter testified at trial, and thus that exception tothe hearsay rule is inapplicable (seePeople v Ennis, 11 NY3d 403, 412 [2008], cert denied 556 US 1240 [2009]).
Defendant failed to raise before the court her contention that its rulings on certain evidentiaryissues deprived her of the right to present a defense, and she thus failed to preserve thatcontention for our review (see People vHaddock, 79 AD3d 1148, 1149 [2010], lv denied 16 NY3d 798 [2011]; seegenerally People v Gonzalez, 54 NY2d 729, 730 [1981]). In any event, we conclude thatdefendant's contention is without merit. Defendant also failed to preserve for our review hercontention that her right of confrontation was violated by the People's failure to call as witnessesthe technicians who performed toxicology tests (see People v Liner, 9 NY3d 856, 856-857 [2007], reargdenied 9 NY3d 941 [2007]). In any event, that contention also lacks merit. The toxicologyanalysis performed by the technicians at independent laboratories involved making a"contemporaneous record of objective facts" and the results did not "directly link defendant to thecrime[s]," but instead concerned only the substances ingested by the victims (People v Freycinet, 11 NY3d 38,41, 42 [2008]). Thus, it is not likely that the content of the reports was influenced by apro-law-enforcement bias (see id.). We therefore conclude that the toxicology evidencewas not testimonial in nature, [*4]and defendant's right ofconfrontation was not implicated by the People's failure to call as witnesses the technicians whoperformed the toxicology tests (see id. at 42; People v Meekins, 10 NY3d 136, 158-160 [2008], cert denied557 US 934 [2009]; cf. People v Rawlins, 10 NY3d 136, 157-158 [2008]).
We agree with defendant that the court erred in permitting a police witness to testify in thePeople's direct case that, during the interview that took place on September 7, 2007, defendantinvoked her right to remain silent (seePeople v Capers, 94 AD3d 1475, 1476 [2012]; see generally People v Basora, 75NY2d 992, 993 [1990]). We nevertheless conclude that the error is harmless beyond a reasonabledoubt inasmuch as there is no reasonable possibility that the error might have contributed todefendant's conviction (see Capers, 94 AD3d at 1476; see generally People vCrimmins, 36 NY2d 230, 237 [1975]).
Defendant made only a general motion for a trial order of dismissal at the close of thePeople's case and failed in any event to renew her motion to dismiss following the close of hercase. She thus failed to preserve for our review her contention that the circumstantial evidence ofthe attempted murder of the daughter is legally insufficient to support the conviction (see People v Roman, 85 AD3d1630, 1630 [2011], lv denied 17 NY3d 821 [2011]). In any event, we conclude thatdefendant's contention is without merit. The daughter denied that she had intentionally ingestedpharmaceutical drugs mixed with alcohol. The daughter testified that, on the afternoon ofSeptember 13, 2007, defendant had prepared an alcoholic drink for her that tasted "horrible," andthe daughter further testified that she thereafter went to bed because she felt ill. It is undisputedthat the daughter did not leave her bedroom until she was taken by medical personnel to thehospital the following morning. Further, the daughter denied that she wrote a suicide note, andthe evidence establishes that the drafts of the purported suicide note were written on September11 and September 12, at times when the daughter was not at home. We therefore conclude thatthe conviction of attempted murder in the second degree is supported by legally sufficientevidence inasmuch as a rational trier of fact could determine that the elements of that crime wereproven beyond a reasonable doubt (see People v Rossey, 89 NY2d 970, 971-972 [1997];People v Bleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in light of theelements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we furtherconclude that the verdict is not against the weight of the evidence with respect to the crime ofattempted murder in the second degree (see Bleakley, 69 NY2d at 495).
We reject defendant's contention that the evidence presented by the People at trial changedthe theory of the prosecution because it established that the daughter ingested drugs during theearly morning hours of September 14, 2007. The indictment charged that defendant attempted tokill the daughter "on or about" September 13, 2007 "by poisoning her with a lethal combinationof pharmaceutical substances that were mixed with an alcoholic beverage." We thereforeconclude that defendant received fair notice of the allegations against her and that she was able toprepare a defense (see People vDawson, 79 AD3d 1610, 1611 [2010], lv denied 16 NY3d 894 [2011]).
We also reject defendant's contention that she was denied a fair trial by prosecutorialmisconduct (see People v Shaw, 66AD3d 1417, 1418 [2009], lv denied 14 NY3d 773 [2010]). We have revieweddefendant's remaining contentions in appeal No. 1 and conclude that none requires modificationor reversal of the judgment.
Addressing defendant's contentions in appeal No. 2, we agree with defendant that the courterred in summarily denying her CPL article 440 motion. In support of her motion, defendantcontended that her indelible right to counsel attached on September 12, 2005, when the policecontacted her attorney regarding the investigation of her second husband's death, and thus [*5]that the police were prohibited from questioning her withoutcounsel on September 7, 2007 (see People v Grice, 100 NY2d 318, 323 [2003];People v Arthur, 22 NY2d 325, 329 [1968]).
As a preliminary matter, we agree with defendant that the court erred in determining that theissue regarding the alleged attachment of defendant's indelible right to counsel could have beenraised in the direct appeal. With respect to that issue, the record on the direct appeal establishesthat, on September 12, 2005, the police requested that defendant provide her fingerprints as partof the investigation of her second husband's death. When defendant advised the police that shehad retained an attorney in connection with her second husband's estate, the police contacted theattorney with respect to their request for defendant's fingerprints. Defendant also spoke with herattorney and thereafter agreed to cooperate with the police. The right to counsel attaches incriminal matters only when the attorney represents the defendant in the criminal matter, and notsolely in a civil matter (see People vLewie, 17 NY3d 348, 361 [2011]), and the record in the direct appeal here does notprovide a sufficient basis for determining whether defendant's attorney represented her withrespect to the investigation of her second husband's death or only with respect to his estate (cf. People v Foster, 72 AD3d1652, 1653-1654 [2010], lv dismissed 15 NY3d 750 [2010]; People v Arena, 69 AD3d 867,868 [2010], lv denied 14 NY3d 838 [2010]). We therefore conclude that "the record [onthe direct appeal] falls short of establishing conclusively the merit of defendant's claim," and thusthat claim was properly raised by way of a motion pursuant to CPL 440.10 (People v McLean, 15 NY3d 117,121 [2010]).
We conclude that defendant's submissions in support of her motion raise a factual issuewhether her indelible right to counsel attached in September 2005, thus requiring a hearing (see generally People v Frazier, 87AD3d 1350, 1351 [2011]). We therefore reverse the order in appeal No. 2 and remit thematter to County Court to determine defendant's motion following a hearing on that issue (seegenerally id.; People v Liggins,56 AD3d 1265, 1266 [2008]).
Finally, contrary to defendant's further contention in appeal No. 2, she was not deprived ofmeaningful representation based upon defense counsel's failure to seek suppression of theSeptember 7, 2007 statement on the additional ground that her indelible right to counsel hadattached. That single error does not constitute a sufficiently egregious error in an otherwisecompetent performance so as to deny defendant a fair trial (see People v Cummings, 16 NY3d 784, 785 [2011], cert denied565 US —, 132 S Ct 203 [2011]). Present—Scudder, P.J., Smith, Fahey andPeradotto, JJ.