| People v Cade |
| 2013 NY Slip Op 06889 [110 AD3d 1238] |
| October 24, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JasonA. Cade, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira, for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Chemung County(Buckley, J.), rendered May 3, 2010, upon a verdict convicting defendant of the crimesof arson in the first degree and murder in the second degree (two counts).
During the early morning hours of July 31, 2009, defendant and Joshua Morgan setfire to a two-family dwelling located in the City of Elmira, Chemung County. Ninepeople were inside the home at the time the fire was set; two of them—WendyBaker and her husband, Lawrence Baker—were unable to escape and died. As aresult, defendant was indicted and charged with arson in the first degree and murder inthe second degree (two counts).[FN1] Following a jury trial, defendant was convicted as charged and thereafter was sentencedto concurrent prison terms of 25 years to life. This appeal ensued.
Defendant first challenges the admissibility of certain of his oral and writtenstatements provided to the police following the fire. The record reflects that defendantinitially agreed to be interviewed on the afternoon of September 4, 2009. Upon hisarrival at the local police station, defendant was advised of his Miranda rights,elected to speak with the police and thereafter made [*2]certain statements regarding his activities on the morning inquestion. When the interviewing detective accused defendant of lying, defendant becameirate and invoked his right to counsel. After defendant calmed down, the detectivecontinued the interview, whereupon defendant gave a written statement and left thepolice station. Approximately three weeks later, on September 24, 2009, defendantinitiated contact with another detective using the "direct connect" function on his cellphone and again made certain statements regarding the circumstances surrounding thefire. Finally, on September 29, 2009, defendant's sister contacted the police and arrangedfor defendant to turn himself in, following which defendant again provided a writtenstatement.
County Court found, and the People concede, that suppression of defendant'sSeptember 4, 2009 written statement was required as such statement was obtained afterdefendant invoked his right to counsel. As to the remaining statements, the record revealsthat defendant was not in custody at the time he gave his oral statement to police onSeptember 4, 2009; defendant agreed to the underlying interview, he was not handcuffedor restrained in any way while at the police station, he was offered an opportunity to usethe bathroom during the course of the interview and he left the police station at theconclusion thereof. Under these circumstances, a reasonable person in defendant'sposition would have believed that he or she was free to leave and, therefore, noMiranda warnings were required (see People v Lewis, 83 AD3d 1206, 1207-1208 [2011],lv denied 17 NY3d 797 [2011]; People v Smielecki, 77 AD3d 1420, 1421 [2010], lvdenied 15 NY3d 956 [2010]; see also People v McCoy, 89 AD3d 1218, 1219-1220[2011], lv denied 18 NY3d 960 [2012]). Nonetheless, defendant was advised ofhis Miranda rights and waived those rights before providing his oral statement,which, in turn, was made prior to his invocation of the right to counsel. Under thesecircumstances, we discern no basis upon which to suppress this statement.
We reach a similar conclusion regarding the oral statement given by defendantduring the September 24, 2009 phone call that he initiated. Defendant's whereaboutswere unknown at the time the call was placed, "and defendant could have ended [thebrief conversation] at any time simply by hanging up the phone" (People v Pagan, 97 AD3d963, 967 [2012], lv denied 20 NY3d 934 [2012]). Accordingly, defendantcannot be said to have been in custody at the time this statement was made. Finally,although there is no question that defendant was in custody at the time he gave a writtenstatement to the police on September 29, 2009, the record reflects that such statementwas provided after defendant again was advised of—and waived—hisMiranda rights.
To the extent that defendant contends that his invocation of the right to counsel onSeptember 4, 2009 mandates suppression of all statements made by him after that date,we disagree. The right to counsel indelibly attaches in two limitedsituations—where formal judicial proceedings against a defendant havecommenced and where an uncharged defendant, who is in custody, has retained orrequested an attorney (see People v Davis, 75 NY2d 517, 521 [1990]; seealso People v Ramos, 99 NY2d 27, 32-33 [2002]). However, "[a] suspect who is notin custody when he or she invokes the right to counsel can withdraw the request and bequestioned by the police" (People v Wilson, 93 AD3d 483, 483-484 [2012], lvdenied 19 NY3d 978 [2012]; see People v Davis, 75 NY2d at 522-523; People v Engelhardt, 94 AD3d1238, 1239-1240 [2012], lv denied 19 NY3d 960 [2012]; People v Casey, 37 AD3d1113, 1115-1116 [2007], lv denied 8 NY3d 983 [2007]; People v White, 27 AD3d884, 886 [2006], lv denied 7 NY3d 764 [2006]). As defendant was not incustody at the time he invoked his right to counsel on September 4, 2009, he was free towithdraw that request or waive such right and speak with the police without having anattorney present—particularly in view of the approximately three weeks [*3]that elapsed between his initial request for an attorney andhis subsequent statements to law enforcement (see People v White, 27 AD3d at886).
As for defendant's assertion that County Court erred in admitting certain rebuttaltestimony offered by the People, defendant failed to object to this testimony and,therefore, this issue is not preserved for our review (see People v Wallis, 24 AD3d 1029, 1031 [2005], lvdenied 6 NY3d 854 [2006]). Finally, upon due consideration of all of the relevantcircumstances, including the nature of the crime and defendant's prior criminal history,the sentence imposed by County Court was neither harsh nor excessive.
The arguments raised in defendant's pro se brief are equally unpersuasive. Althoughdefendant now contends that certain testimony regarding a conversation that Morgan hadwith Larry Baker Jr. the night before the fire deprived him of his constitutional right toconfront the witnesses against him, defendant's sole objection at trial was that Morgan'stestimony constituted hearsay. As a result, the alleged Confrontation Clause violation isunpreserved for our review (seePeople v McMillon, 77 AD3d 1375, 1375-1376 [2010], lv denied 16NY3d 897 [2011]; People vJohnson, 66 AD3d 703, 703 [2009], lv denied 14 NY3d 771 [2010]). Inany event, "[t]he [Confrontation] Clause . . . does not bar the use oftestimonial statements for purposes other than establishing the truth of the matterasserted" (People vReynoso, 2 NY3d 820, 821 [2004] [internal quotation marks and citationsomitted]; accord People vWisdom, 23 AD3d 759, 761 [2005], lv denied 6 NY3d 840 [2006]), andthe record before us establishes that Morgan's testimony[FN2] was offered as circumstantial evidence of defendant's state of mind. Accordingly, noCrawford violation occurred (cf. People v Ragsdale, 68 AD3d 897, 898 [2009], lvdenied 14 NY3d 804 [2010]; People v Wisdom, 23 AD3d at 761).
Defendant's claims of prosecutorial misconduct also are unpreserved for our review,as defendant made no objection to either a certain question posed to him oncross-examination or the allegedly improper comments made by the District Attorneyduring summation (see People vMosher, 94 AD3d 1231, 1233 [2012], lv denied 19 NY3d 999 [2012];People v Ciccone, 90 AD3d1141, 1145 [2011], lv denied 19 NY3d 863 [2012]). In any event, thechallenged conduct "was not so egregious or pervasive as to deprive defendant of a fairtrial" (People v Muniz, 93AD3d 871, 876 [2012], lv denied 19 NY3d 965 [2012]).
Finally, we find no merit to defendant's claim of ineffective assistance of counsel. Tothe extent that defendant contends that counsel failed to adequately investigate his case,this argument implicates matters outside of the record and, as such, is more properlyconsidered in the context of a CPL article 440 motion (see People v Stroman, 106AD3d 1268, 1271 [2013], lv denied 21 NY3d 1046 [2013]). As to thebalance of defendant's claim, "[t]he constitutional right to the effective assistance ofcounsel does not mean that the representation was error free in every [*4]respect, but simply that defendant was afforded a fair trial"(People v Bjork, 105 AD3d1258, 1263 [2013] [internal quotation marks and citations omitted], lvdenied 21 NY3d 1040 [2013]). Here, the record reveals that counsel engaged inrelevant motion practice, presented appropriate opening and closing statements,effectively cross-examined the People's witnesses and registered appropriateobjections.[FN3] Under such circumstances, we are satisfied that defendant received meaningfulrepresentation (see People vWilbur, 108 AD3d 878, 880 [2013]; People v Pinkney, 90 AD3d 1313, 1317 [2011]).Defendant's remaining arguments, to the extent not specifically addressed, have beenexamined and found to be lacking in merit.
Stein, J.P., McCarthy and Spain, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Morgan pleaded guiltyto arson in the first degree and was sentenced to a prison term of 20 years to life.
Footnote 2: According to Morgan,Larry Baker Jr. was involved in a dispute with one of defendant's brothers, CourtneyCade, and Baker indicated—on the night in question—that he might need toenlist Morgan's assistance in bringing Cade to the Baker residence so that Baker and hisfriends could "hurt him." Morgan then related this conversation to defendant, in responseto which defendant stated, "[F]. . . it, let's burn the house down."
Footnote 3: To the extent thatdefendant faults counsel for failing to, among other things, register certain objections, wefind—for the reasons previously discussed— that such omissions "do not,either alone or cumulatively, warrant corrective action in the exercise of our interest ofjustice jurisdiction" (People vManning, 81 AD3d 1181, 1184 [2011], lv denied 18 NY3d 959 [2012])and, as applied to defendant's ineffective assistance of counsel claim, "did not rise tosuch an egregious level as to deprive defendant of meaningful representation" (People v Wells, 101 AD3d1250, 1255 [2012], lv denied 20 NY3d 1066 [2013]).