| People v Foster |
| 2012 NY Slip Op 08946 [101 AD3d 1668] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michial E. Foster,Appellant. |
—[*1] Michial E. Foster, defendant-appellant pro se. Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Walter W. Hafner, Jr., A.J.), renderedNovember 19, 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, following a jury trial, of murderin the second degree (Penal Law § 125.25 [1]), arising from the murder of the mother of hischildren on May 29, 1996. The remains of the victim's body were not located for more than 11 years,when they were observed by a passerby in a wooded area. Defendant was thereafter convicted of themurder and, on defendant's appeal from that judgment, we reversed the judgment, suppressed certainstatements made to a jailhouse informant, and granted a new trial (People v Foster, 72 AD3d 1652 [2010], lv dismissed 15 NY3d750 [2010]).
We reject defendant's contention in his main and pro se supplemental briefs that the verdict fromthe second trial is against the weight of the evidence. Defendant contends that evidence that the victimwas at the hospital at 11:20 a.m. to feed her son, who was born prematurely, and testimony from thevictim's sister and brother-in-law that they stopped at the victim's house at approximately 11:30 a.m.,where they spoke to defendant, establishes that it was "impossible" for him to have killed the victim inthe time frame alleged by the prosecution. The witnesses further testified, however, that they wereunsure of the time of their arrival at the victim's house, but that they stopped "around lunchtime"following a medical appointment. When they arrived, they found the 3½-year-old daughter ofdefendant and the victim (daughter) in defendant's van, where she was crying. When they entered thehouse, they observed that defendant was "sweating profusely" and "breathing heavily." The daughter,who was 17 years old at the time of the second trial, testified that she had observed defendant on top ofher mother on the bed; that her mother stopped moving; that defendant rolled her mother in a colorfulblanket; and that defendant placed the daughter in the van. The daughter testified that the victim's body,which defendant told her was "just a bunch of trash," was in the back of the van and that defendantdrove to a wooded area. He took the daughter out of the car, carried the [*2]victim over his shoulder, and left the victim near water and cattails. Ajailhouse informant testified that defendant told him that the best way to dispose of a body was to wrapit in a blanket and bury it in a shallow grave in a marshy area. Viewing that evidence in light of theelements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that anacquittal would have been unreasonable, and thus that the verdict is not against the weight of theevidence (see id. at 348; People v Bleakley, 69 NY2d 490, 495 [1987]).
Contrary to defendant's contention in his main and pro se supplemental briefs, he was not deprivedof effective assistance of counsel. With respect to defense counsel's alleged failure to cross-examine thedaughter about discrepancies in her testimony in the first and second trials, defendant failed to establishthe "absence of a strategic or other legitimate explanation for defense counsel's alleged shortcomings"(People v Smith, 93 AD3d 1345,1346 [2012], lv denied 19 NY3d 967 [2012]). The other challenges raised by defendantconcerning defense counsel's representation also are without merit, and thus we conclude that hereceived meaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).We have reviewed the remaining contentions in defendant's pro se supplemental brief and conclude thatnone requires reversal or modification.
By failing to object to remarks by the prosecutor on summation to defendant's use of a blanket towrap the victim's body, defendant failed to preserve for our review his contention in his main brief thathe was deprived of a fair trial by prosecutorial misconduct arising from those remarks (see People v Rumph, 93 AD3d 1346,1347 [2012], lv denied 19 NY3d 967 [2012]). In any event, the remarks of the prosecutorwere fair comment on the evidence (seePeople v McEathron, 86 AD3d 915, 916 [2011], lv denied 19 NY3d 975 [2012]).Although there was no blanket found with the remains of the victim's body, there were fibers in thatlocation that were consistent with a woven material; the daughter testified that defendant had wrappedher mother in a colorful blanket; another witness testified that a colorful blanket owned by the victimwas missing from the victim's home; and the jailhouse informant testified that defendant told him that abody should be wrapped in a blanket and disposed of in a shallow grave.
We reject defendant's further contention in his main brief that County Court erred in admitting"implied hearsay," i.e., testimony of various witnesses concerning the events surrounding statementsmade by the daughter regarding her mother's disappearance, in the absence of testimony concerning thestatements themselves. We note that, at defendant's first trial, statements made by the daughterregarding her mother's disappearance were admitted as excited utterances, while at the second trial,over which a different judge presided, the statements were held to be inadmissible. Where, as here, thecourt did not abuse its discretion with respect to that evidentiary ruling at the second trial, it will not bedisturbed (see generally People v Carroll, 95 NY2d 375, 385 [2000]). We also rejectdefendant's contention in his main brief that the court abused its discretion in denying his motion for amistrial when a witness testified regarding a hearsay statement made by the victim. "The court's promptcurative instruction minimized any prejudice caused by the improper testimony" (People v Roman, 17 AD3d 1166,1166 [2005], lv denied 5 NY3d 768 [2005]).
Finally, we reject defendant's contention in his main brief that the grand jury proceedings wererendered defective because evidence presented to the grand jury was later suppressed or determinednot to be admissible. To the extent that defendant's contention addresses statements that he made to thejailhouse informant that were subsequently suppressed, we conclude that the suppression "simplydiminish[ed] the quantum of proof against defendant but [did] not negate any elements of the chargedcrime[ ]" (People v Gordon, 88 NY2d 92, 96 [1996]; see People v Swamp, 84NY2d 725, 732 [1995]). Defendant failed to preserve for our review his further contention that theindictment was based upon incompetent evidence consisting of statements made by defendant's [*3]daughter that were not admitted at the second trial but were admitted atthe first trial (see CPL 470.05 [2]). In any event, that contention is without merit. We concludethat the statements were properly admitted at the first trial as an exception to the hearsay rule, and thusthey do not constitute "inherently incompetent evidence" (Swamp, 84 NY2d at 732), despitethe subsequent determination that the statements were not admissible at the second trial. Furthermore,the People adequately instructed the grand jury that statements made by the daughter were beingadmitted based upon an exception to the hearsay rule (see People v Perry, 199 AD2d 889,893 [1993], lv denied 83 NY2d 856 [1994]). Present—Scudder, P.J., Fahey, Carni,Lindley and Sconiers, JJ.