| People v Kenyon |
| 2013 NY Slip Op 05336 [108 AD3d 933] |
| July 18, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vWilliam E. Kenyon, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Broome County (Smith,J.), rendered December 2, 2010, upon a verdict convicting defendant of the crimes ofmanslaughter in the first degree and criminal trespass in the second degree.
At 4:24 a.m. on June 27, 2009, Kelly Wescott (hereinafter the victim) placed a 911call indicating that defendant—her boyfriend—had kicked down the door toher apartment in the Village of Johnson City, Broome County and was refusing to leave.When a police officer arrived, he observed that the door frame and surrounding moldingwas damaged; defendant, however, was nowhere to be found. The victim declined topress charges, and the officer, who was scheduled to end his tour at 6:40 a.m., left thepremises and briefed the next shift regarding the incident. Before doing so, theofficer—noting that the damaged door was not "all that secure"—suggestedthat the victim prop a kitchen chair underneath the door knob "for extra security."
At 7:41 a.m., patrol officer Todd Haven was dispatched to defendant'sresidence—also located in Johnson City—in response to a welfarecomplaint regarding defendant's two daughters. While en route, Haven was advised thatdispatch had received a telephone call from defendant's brother indicating that defendant"was making statements that he [had] just killed his girlfriend." Fellow officer MichaelMason also was assigned to the call. Upon arrival, [*2]defendant's brother admitted Haven and Mason to theresidence,[FN1] at which time they observed defendant sitting on a love seat drinking a beer. As theofficers approached, defendant turned to one of his daughters and stated, "[T]his [will]be [my] last drink." Haven, who recognized defendant, then said, "[H]ey, Billy, what'sgoing on," in response to which defendant indicated that "he [had] killed his girlfriend."Specifically, defendant stated, "[We] were having wild sex and she pissed me off and Ikilled the f. . .. . . whore."
Haven was aware of the earlier incident at the victim's apartment and, in an effort toclarify the situation, asked defendant whether the event to which he was referringoccurred before or after the victim's prior 911 call. When defendant indicated that thisincident occurred after the victim's 911 call, Haven stepped outside and advised dispatchto send officers to the victim's residence to check on her welfare. Mason then posed asimilar question ("[W]hen did this . . . take place?") to defendant, whostated that the incident occurred "last night." Pending notification of the victim's status,Haven and Mason handcuffed defendant and placed him in the back of Haven's patrolcar. Mason stood outside the patrol vehicle to keep an eye on defendant, and Haven wentback inside the residence to secure the scene. Defendant continued to make incriminatingstatements—both as he walked to and once he was inside of the patrolvehicle—the latter of which were captured by the vehicle's surveillance camera,which Mason activated shortly after placing defendant inside.
In the interim, officers were dispatched to the victim's residence. As the officersknocked on the door to the apartment, the door opened on its own, at which time theyobserved pieces of the broken door molding mixed with the remnants of a broken chairon the floor of the residence.[FN2] The officers then proceeded to the rear of the apartment, where they discovered thevictim's body lying on a bed. Shortly after 9:00 a.m., defendant was transported to thelocal police station where—after being advised of his Mirandarights—he continued to make various statements. A subsequent autopsy disclosedthat the victim's death resulted from "asphyxiation due to smothering."
Defendant subsequently was indicted and charged with murder in the second degreeand criminal trespass in the second degree. Following a jury trial, defendant wasconvicted of the lesser included offense of manslaughter in the first degree and criminaltrespass in the second degree. At the conclusion of a lengthy sentencing hearing,defendant was sentenced as a persistent felony offender to concurrent terms of one yearfor the criminal trespass conviction and 25 years to life for the manslaughter conviction.Defendant now appeals.
We affirm. Initially, we reject defendant's assertion that County Court erred in failingto suppress his various statements made to law enforcement officials. "[T]he safeguardsrequired [*3]by Miranda are not triggered unlessa suspect is subject to custodial interrogation" (People v Lewis, 83 AD3d 1206, 1207 [2011], lvdenied 17 NY3d 797 [2011] [internal quotation marks and citation omitted]). Here,defendant was not in custody when Haven and Mason initially spoke with him at hisresidence, and defendant's statements—made in response to the brief investigatoryquestions posed by the officers in an effort to clarify precisely what hadtranspired—were not the product of a custodial interrogation (see People v Smith, 89 AD3d1126, 1127 [2011], lv denied 18 NY3d 962 [2012]; People v Cordato, 85 AD3d1304, 1309 [2011], lv denied 17 NY3d 815 [2011]; People v Steinhilber, 48 AD3d958, 959 [2008], lv denied 10 NY3d 871 [2008]; People v Brand, 13 AD3d820, 822 [2004], lv denied 4 NY3d 851 [2005]; cf. People v Hayes, 60 AD3d1097, 1100-1101 [2009], lv denied 12 NY3d 925 [2009]; People v Butcher, 38 AD3d942, 943 [2007], lv denied 9 NY3d 841 [2007]; People v Baker, 27 AD3d887, 888 [2006]).[FN3] Hence, suppression of those statements was not warranted.
As for the statements made by defendant once he was handcuffed and escortedto/placed in Haven's patrol vehicle, "spontaneous statements made while in custodywhich are not the product of questioning or its functional equivalent clearly areadmissible regardless of whether Miranda warnings were given" (People v Starks, 37 AD3d863, 864 [2007] [internal quotation marks and citations omitted]; accord People v Rabideau, 82AD3d 1283, 1284 [2011], lv denied 17 NY3d 799 [2011]; see People v Henderson, 74AD3d 1567, 1569 [2010], mod 77 AD3d 1168 [2010]; People v Scott, 47 AD3d1016, 1019-1020 [2008], lv denied 10 NY3d 870 [2008]). Contrary todefendant's assertion, Mason's subsequent and occasional inquiries as to defendant'swelfare did not constitute interrogation.[FN4] Finally, any statements made by defendant at the police station after he was advised ofand waived his Miranda warnings clearly were not subject to suppression (see People v Culver, 69 AD3d976, 977 [2010]; People vMann, 41 AD3d 977, 979-980 [2007], lv denied 9 NY3d 924 [2007]).To the extent that defendant now suggests that he was too intoxicated to validly waivehis Miranda rights, this argument—assuming it has been preserved for ourreview—is belied by the testimony adduced at the suppression hearing (seePeople v Smith, 89 AD3d at 1128; People v Scott, 47 AD3d at 1020).Accordingly, County [*4]Court properly denieddefendant's motion to suppress the challenged statements.
As for defendant's request for a change of venue, defendant improperly brought hismotion before County Court, rather than this Court (see CPL 230.20 [2]).Moreover, "because the motion was made prior to jury selection, it was premature"(People v Brockway, 255 AD2d 988, 988 [1998], lv denied 93 NY2d967 [1999]), and the record does not reflect that defendant thereafter revisited the issuewith County Court. Accordingly, this issue has not been preserved for our review (see People v Hardy, 38 AD3d1169, 1169-1170 [2007], lv denied 9 NY3d 865 [2007]). Defendant's relatedassertion—that County Court improperly denied three of his challenges forcause—is unavailing. Even assuming that County Court erred in this regard,defendant concedes that he did not exhaust all of his peremptory challenges during juryselection; therefore, any error in this regard would not warrant reversal (see People v Plaza, 60 AD3d1153, 1154 [2009], lv denied 12 NY3d 919 [2009]; People v Doherty, 37 AD3d859, 860 [2007], lv denied 9 NY3d 843 [2007]).
Defendant's various challenges to County Court's evidentiary rulings are equallyunpersuasive. To the extent that defendant contends that the admission of the victim's911 call violated his constitutional right to confront the witnesses against him (seeCrawford v Washington, 541 US 36 [2004]), we note that "[t]he statements on thetape were not testimonial, as their purpose was to enable the police to meet an ongoingemergency and apprehend the perpetrator, not to provide evidence for later prosecution"(People v Shaver, 86 AD3d800, 802 [2011], lv denied 18 NY3d 962 [2012]; see Davis vWashington, 547 US 813, 822, 826-828 [2006]; People v Bradley, 8 NY3d 124, 127-128 [2006]). Underthese circumstances, no Crawford violation occurred.
Nor are we persuaded that County Court erred in precluding testimony regardingdefendant's sexual practices with a former paramour, who purportedly would havetestified that defendant "applied pressure to her neck in a choking fashion" for sexualpleasure. Although defendant had a constitutional right to present witnesses in hisdefense, that right was neither absolute nor unfettered, and County Court retained "widelatitude to exclude evidence that [was] repetitive, only marginally relevant, or pose[d] anundue risk of confusion of the issues" (People v Black, 90 AD3d 1066, 1067 [2011], lvdenied 18 NY3d 992 [2012]; see People v Bowen, 67 AD3d 1022, 1023 [2009], lvdenied 14 NY3d 769 [2010]). Upon reviewing defendant's offer of proof andconsidering the context in which such testimony was sought, we cannot say that CountyCourt abused its discretion in denying defendant's request (compare People v Burkett, 101AD3d 1468, 1470 [2012], lv denied 20 NY3d 1096 [2013]; People v Doyle, 48 AD3d961, 963-964 [2008], lv denied 10 NY3d 862 [2008]). Defendant's relatedclaim—that he was prohibited from eliciting testimony regarding the victim'sphysical strength and "feisty" nature when intoxicated—is belied by the record.
Defendant next contends that his manslaughter conviction is not supported by legallysufficient evidence and, further, is against the weight of the evidence. In this regard, aperson is guilty of manslaughter in the first degree when he or she, with intent to causeserious physical injury to the victim, causes the victim's death (see Penal Law§ 125.20 [1]). The intent element "may be inferred from a defendant's actions and[the] surrounding circumstances" (People v Ford, 90 AD3d 1299, 1300 [2011], lvdenied 18 NY3d 994 [2012]; see People v Molina, 79 AD3d 1371, 1376 [2010], lvdenied 16 NY3d 861 [2011]).
James Terzian, the forensic pathologist who performed the victim's autopsy, opinedthat [*5]the victim died from "asphyxiation due tosmothering"—specifically, that someone "[m]ost probably" positioned himself orherself on top of the victim and applied pressure to the victim's neck (utilizing thenecklace she was wearing) and torso, thereby restricting her ability to breathe. Accordingto Terzian, such pressure "would have [had] to continue for some period [of time] after[the victim became] unconscious . . . [i]n order for her to die." Terzian'sopinion as to the cause of death was based upon, among other things, the blanching ofthe skin on the victim's torso, the petechiae or micro hemorrhages observed on thevictim's face and lower extremities and the "very pronounced" groove on the victim'sneck that corresponded with her necklace. Despite the conflicting medical testimonyoffered by defendant's forensic toxicologist, who noted the presence of cocaine andalcohol in the victim's system (as had Terzian), and defendant's forensic pathologist, whoposited that the victim's death could have resulted from positional asphyxiation or a fatalreaction to cocaine, we nonetheless conclude that the jury's implicit finding as to thecause of death was supported by legally sufficient evidence and was not against theweight of the evidence (see e.g.People v Barreto, 64 AD3d 1046, 1048-1049 [2009], lv denied 13NY3d 834 [2009]).
With respect to the identity of the perpetrator, defendant's mother, who responded todefendant's request for a ride home from the victim's residence on the morning inquestion, testified that when defendant entered her vehicle, she noticed that his wristswere bleeding—apparently as the result of a failed suicide attempt.[FN5] Defendant thereafter variously informed members of his family, Haven andMason—many of whom testified at trial—that he "might have killed [thevictim]," that he "just killed [the victim]" and that he and the victim "were having wildsex and she pissed [him] off and [he] killed the f . . . . . .whore." Defendant also was determined to be a "major contributor" to the DNA found inthe drops of blood present on the victim's shoulder, abdomen and pillowcase, and DNAtaken from underneath defendant's fingernails was "consistent" with a mixture ofdefendant's and the victim's DNA (see People v Thibeault, 73 AD3d 1237, 1240 [2010], lvdenied 15 NY3d 810 [2010], cert denied 562 US —, 131 S Ct 1691[2011]). In light of such proof, we are satisfied that defendant's identity as the perpetratoris based upon legally sufficient evidence and is not against the weight of the evidence.
We reach a similar conclusion as to the element of intent. As noted previously, thepolice officer who responded to the victim's 911 call advised her to position a kitchenchair underneath her door knob for added security, and a broken chair leg was found onthe victim's bed underneath her head—giving rise to the inference that the door tothe victim's residence was forcibly opened. Similarly, Terzian testified that, in order tocause the victim's death, pressure had to have been applied to her neck and torso forsome period of time after she lost consciousness. Such proof, coupled with defendant'srepeated statements that the victim had (or should not have) "pissed him off," support theinference that defendant intended to cause the victim serious physical injuryand—in so doing—caused her death (see e.g. People v Rogers, 94 AD3d 1246, 1250-1251[2012], lv denied 19 NY3d 977 [2012]). To the extent that defendant argues thathe was "extremely intoxicated at all relevant times," we note that "[w]hether anindividual's level of intoxication negates the element of intent to commit a crime lieswithin the domain of the jury as the trier of fact" (People v Scott, 47 AD3d at1018 [internal quotation marks and citations omitted]; cf. People v Burch, 45 AD3d1188, 1189 [2007]). Upon our review of the record as a whole, "we cannot say thatthe jury improperly weighed the evidence in [*6]decidingin the People's favor" on this point (People v Scott, 47 AD3d at 1019).Accordingly, we discern no basis upon which to disturb defendant's conviction.
Nor are we persuaded that defendant was denied the effective assistance of counsel.In addition to making appropriate pretrial motions, including arguing for suppression ofdefendant's various statements despite a limited likelihood of success, counsel advanceda viable and legitimate defense strategy—namely, that the victim had accidentallysuffocated as a result of her drug use. To the extent that defendant faults counsel forfailing to object to the autopsy photos of the victim, the photos, which were notparticularly gruesome, not only illustrated material and disputed issues in the case, butarguably supported defendant's theory that the victim's body displayed scant signs ofphysical trauma in connection with her death (see People v Timmons, 78 AD3d 1241, 1244-1245 [2010],lv denied 16 NY3d 837 [2011]; People v Thibeault, 73 AD3d at 1243; People v Ford, 43 AD3d571, 574 [2007], lv denied 9 NY3d 1033 [2008]). Additionally, we fail todiscern any prejudice to defendant resulting from the brief delay occasioned by defensecounsel's successful request for an adjournment to enable defendant's forensicpathologist, who apparently was retained after the trial was under way, to review certainpathology slides prior to testifying. Finally, defendant has failed to demonstrate thatcounsel's decisions regarding certain aspects of the jury charge were anything other thanstrategic or tactical determinations, which this Court will not second-guess (seePeople v Shaver, 86 AD3d at 802; see also People v Jenkins, 90 AD3d 1326, 1330 [2011],lv denied 18 NY3d 958 [2012]). In short, as our review of the record reflects thatcounsel zealously represented defendant's interests throughout the course of the trial by,among other things, making appropriate motions and objections, effectivelycross-examining the People's witnesses, advancing a plausible defense (despiteoverwhelming evidence of defendant's guilt) and obtaining an acquittal on the top countof the indictment, we are satisfied that defendant was afforded meaningful representation(see People v O'Daniel, 105AD3d 1144, 1147 [2013]; People v Thomas, 105 AD3d 1068, 1071-1072 [2013]; People v Jordan, 99 AD3d1109, 1110-1111 [2012], lv denied 20 NY3d 1012 [2013]).
Defendant's various jury-related challenges do not warrant extended discussion.Inasmuch as defendant voiced no objection to County Court's response to the jury'srequest for a read back of certain expert testimony, defendant's presentassertion—that County Court pressured the jury to accept a limited read back ofthe requested testimony—has not been preserved for our review (see People vStevens, 216 AD2d 676, 679 [1995], lv denied 87 NY2d 908 [1995]; see also People v Jackson, 52AD3d 1052, 1053-1054 [2008], lv denied 11 NY3d 789 [2008]) and, in anyevent, is lacking in merit. Defendant's claim that County Court erred in failing to chargethe jury as to the lesser included offense of criminally negligent homicide also isunavailing. County Court charged the jury as to manslaughter in the first degree andmanslaughter in the second degree—both lesser included offenses of murder in thesecond degree—and the jury convicted defendant of manslaughter in the firstdegree. Under these circumstances, "defendant's challenge to [County Court's] refusal tocharge criminally negligent homicide as a lesser-included offense of murder in thesecond degree is foreclosed by the jury's verdict finding him guilty of manslaughter inthe first degree, and its implicit rejection of the lesser-included offense of manslaughterin the second degree which had been submitted to it" (People v McGeachy, 74 AD3d989, 989 [2010], lv denied 15 NY3d 853 [2010]; see People v Conroy, 102AD3d 979, 981 [2013]; People v Burkett, 101 AD3d at 1472-1473; see also People v Green, 5NY3d 538, 545 [2005]). Finally, we cannot say that County Court erred in denyingan individual juror's request for a copy of the court's written charge to the jury, as suchrequest was made before the jury commenced deliberations and prior to any request bythe jury for additional instructions (see CPL 310.30; cf. People v Townsend, 94AD3d 1330, 1331-1332 [2012], lv denied 19 NY3d [*7]1105 [2012]).
As for defendant's claim that County Court erred in denying his respective motions toset aside the verdict pursuant to CPL 330.30 without a hearing, we disagree. Theinformation provided by Shannon Shoemaker, which formed the basis for defendant'sNovember 2010 motion, was known to defendant prior to trial and, therefore, does notqualify as newly discovered evidence within the meaning of CPL 330.30 (3) (see People v Moyer, 75 AD3d1004, 1007-1008 [2010]). With respect to defendant's September 2010 motion,which was predicated upon hearsay allegations of juror misconduct purportedly relayedto defendant's daughters (see CPL 330.30 [2]), we note that "[h]earsayallegations are insufficient to support a claim of juror misconduct" (People v Comfort, 30 AD3d1069, 1069-1070 [2006], lv denied 7 NY3d 787 [2006]; see People v Covington, 44AD3d 510, 510 [2007], lv denied 9 NY3d 1032 [2008]; see also People v Davis, 83AD3d 1210, 1213 [2011], lv denied 17 NY3d 794 [2011]). Moreover, thedaughters' respective affidavits "failed to allege that the jury's deliberative process wasaffected by an outside or improper influence, nor was the alleged impropriety sufficientlyprejudicial as to require a new trial" (People v Gordon, 101 AD3d 1158, 1160 [2012], lvgranted 21 NY3d 912 [2013]; see People v Covington, 44 AD3d at 511).
As a final matter, we find no merit to defendant's various sentencingissues—including his assertion that County Court should have recused itself frompresiding over his sentencing hearing. Absent legal disqualification (seeJudiciary Law § 14), which defendant does not allege, "a [trial] judge is the solearbiter of recusal and his or her decision, which lies within the personal conscience of thecourt, will not be disturbed absent an abuse of discretion" (Gonzalez v L'Oreal USA, Inc.,92 AD3d 1158, 1159 [2012] [internal quotation marks and citations omitted], lvdismissed 19 NY3d 874 [2012]; see People v Shultis, 61 AD3d 1116, 1117 [2009], lvdenied 12 NY3d 929 [2009]). Our review of the record fails to disclose any evidenceof judicial bias, and the fact that County Court previously presided over other criminalmatters involving defendant did not warrant recusal here (cf. People v Lerario, 43 AD3d492, 492-493 [2007]; People v Wallis, 24 AD3d 1029, 1031 [2005], lvdenied 6 NY3d 854 [2006]; People v Caputo, 142 AD2d 888, 889 [1988]).Hence, County Court's denial of defendant's recusal motion, which was made in themidst of the sentencing hearing, was not an abuse of discretion.
We reach a similar conclusion with respect to defendant's request for a new attorneyto represent him at sentencing. Given that four months elapsed between defendant'sconviction and the resulting sentencing hearing, we cannot say that County Court abusedits discretion in failing to appoint assigned counsel for defendant at the start of the suchhearing—particularly given that there is nothing in the record to suggest thatdefendant's retained counsel, who zealously represented defendant throughout the courseof the trial, "failed to handle the [sentencing] matter in a competent and professionalmanner" (People v Davis, 161 AD2d 787, 789 [1990], lv denied 76NY2d 939 [1990]; see People v Rodriguez, 126 AD2d 580, 581 [1987], lvdenied 69 NY2d 954 [1987]; compare People v Susankar, 34 AD3d 201, 202 [2006],lv denied 8 NY3d 849 [2007]; People v Jones, 15 AD3d 208, 209 [2005]).
Nor are we persuaded that the People failed to prove—beyond a reasonabledoubt—that defendant qualified as a persistent felony offender within the meaningof Penal Law § 70.10 (1) (see CPL 400.20 [5]). The certificates ofconviction documenting defendant's conviction of vehicular manslaughter in the seconddegree in 1991, driving while intoxicated as a felony in 1996 and attempted robbery inthe first degree in 1997 were sufficient to establish defendant's status as a persistentfelony offender (see People vBattease, 93 AD3d 888, 889 [2012], lv denied 18 NY3d [*8]992 [2012]; People v Shaw, 83 AD3d 1101, 1102 [2011], lvdenied 17 NY3d 801 [2011]; People v Chambers, 45 AD3d 465, 465 [2007], lvdenied 10 NY3d 762 [2008]). Moreover, assuming that the related documentationprovided by the People, i.e., fingerprint cards and various records maintained by theDepartment of Corrections and Community Supervision, was required, we are satisfied,based upon our review of the hearing transcript, that such materials were properlyauthenticated. Finally, nothing in the record before us suggests that County Court abusedits discretion in concluding that "the history and character of . . . defendantand the nature and circumstances of his criminal conduct are such that extendedincarceration and lifetime supervision of [him] are warranted to best serve the publicinterest" (CPL 400.20 [1] [b]), and we reject defendant's assertion that the resultingsentence was harsh and excessive (see People v Battease, 93 AD3d at 889;People v Morey, 304 AD2d 855, 856-857 [2003], lv denied 100 NY2d564 [2003]). Defendant's remaining arguments, to the extent not specifically addressed,have been examined and found to be lacking in merit.
Rose, J.P., Spain and McCarthy, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: The residence consistedof two apartments; defendant resided in the upstairs apartment, while his mother andcertain other relatives resided in the downstairs apartment. The responding officers wereadmitted to the mother's apartment, where defendant and members of his family weregathered.
Footnote 2: Two of the four chairlegs were missing—one was found "a very short distance from the door" and theother was found "on the bed with [the victim,] underneath her head."
Footnote 3: Notably, defendant'sbrother testified that when defendant first told him that "[he] might have killed [thevictim]," he "assumed [that defendant] was pulling [his] leg." Even after defendant madea similar disclosure to his daughters, defendant's brother testified that they still "didn'treally believe him." Under these circumstances, Haven, who had been told that the victimwas alive approximately three hours earlier, hardly can be faulted for posing limitedinvestigatory questions in an attempt to properly assess the situation unfolding beforehim.
Footnote 4: In response todefendant's efforts to find a comfortable sitting position while handcuffed in the back ofthe patrol vehicle, Mason—after making various suggestions in thisregard—inquired, "You're good now?" Similarly, after defendant muttered, "Thissucks," Mason asked, "Are you alright?" When defendant answered, "No," Mason thenasked, "What's wrong?" Simply put, such inquiries did not amount to custodialinterrogation or its functional equivalent.
Footnote 5: Defendant hadsuperficial cuts on his wrists, and a steak knife with his blood on it was found in hisapartment.