| People v Malak |
| 2014 NY Slip Op 03296 [117 AD3d 1170] |
| May 8, 2014 |
| Appellate Division, Third Department |
[*1](May 8, 2014)
| The People of the State of New York, Respondent, vDaniel L. Malak, Appellant. |
Theresa M. Suozzi, Saratoga Springs, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joseph J. Hester of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Ulster County (Czajka,J.), rendered November 19, 2010, upon a verdict convicting defendant of the crime ofmurder in the second degree.
On March 25, 1996, defendant, Alexander Barsky and Joseph Martin—eachthen 15 years old—were classmates attending the same school in Ulster County.According to Barsky, Martin had stolen money and marihuana from him during the sixmonths prior to this date, prompting Barsky and defendant to formulate a plan to lureMartin to a cabin in the woods in order to attack him. The cabin, which was locatedapproximately 100 yards from defendant's residence, had been built by defendant, Barskyand others—using stockade fencing, sheet metal, metal pipes and a bluetarp—approximately one year earlier and served as a "ramshackle," "localneighborhood hangout." The stated plan was for defendant, Barsky and Martin to meet atthe intersection of Schwabie Turnpike and Samsonville Road in the Town of Rochester,Ulster County and then follow two trails through the woods to the cabin, where the threewould drink beer, smoke marihuana and watch for a comet that was scheduled to appearin the night sky. According to Barsky, he only intended to hurt Martin.
In furtherance of this plan, Barsky later would relate, he and defendant met up withthen 18-year-old Christopher Brown on the afternoon of March 25, 1996, and Brownassisted them in procuring two 12-packs of beer and a quantity of marihuana. Later thatevening, defendant, [*2]Barsky and Martin participatedin a three-way phone call—overheard by Martin's brother—wherein thethree arranged to meet "for an evening of beer, marihuana and watching the comet." Atsome point after 10:00 p.m., Martin climbed out of his bedroom window to meetdefendant and Barsky. After the three converged at the designated intersection, theyfollowed the trails through the woods to the cabin—arriving there atapproximately 11:00 p.m.
Upon arriving at the cabin, the three began to drink the beer and smoke themarihuana that had been purchased through Brown earlier that afternoon. According toBarsky, as Martin knelt down to block the wind so that he could light up a marihuanapipe, defendant, who was standing behind and to the right of Martin, swung a steelpipe—measuring approximately two feet in length—"[w]ith great force" atthe back of Martin's head, causing Martin to fall to the ground. As Martin lay on theground face up, defendant struck Martin—"[w]ith strong force"—on theside of his head before handing the pipe to Barsky. Barsky delivered two blows toMartin's legs before handing the pipe back to defendant, who then struck Martin"approximately two more times" on his upper body.
Following the attack, defendant and Barsky placed Martin in a wheelbarrow andmoved him 50 to 100 yards away from the cabin. Defendant then informed Barsky that"he would take care of the rest." At this point, defendant and Barsky walked to a quarrynear defendant's house, consumed additional beer and discussed what to do next. Shortlythereafter, the two parted company—having agreed that, "if anybody asks, to saythat [Martin] . . . never showed up that night." According to Barsky,defendant warned him "to keep [his] mouth shut or [he would be] next."
Defendant and Barsky initially stuck with their story and, within days of Martin'sdisappearance, each gave written statements to law enforcement officials admitting thatthey had plans to meet Martin on the night in question, but contending that Martin neverarrived and disavowing any knowledge of his whereabouts. Although subsequentsearches of the area surrounding Martin's residence, the intersection of SchwabieTurnpike and Samsonville Road and the quarry failed to disclose any trace ofMartin,[FN1]
Barsky returned to the cabin several months later and located Martin's remainsunderneath an overhanging rock—located approximately 50 to 100 feet away fromthe point where Martin was last seen. As he peered into the crevice created by theoverhanging rock, Barsky observed what he described as a blanket partially coveringMartin's remains, which, according to Barsky, consisted solely of bones. Barsky, who bythen was living in New York City, returned to the scene again in "the winter of 2002"and "cleared away what remains [he] could find"—placing the bones he collectedin black plastic bags that he disposed of upon his return home. In September 2002,Barsky spoke with defendant, who suggested that Barsky "go back to the site and findeverything and remove . . . the remains," in response to which Barsky said,"Just don't worry about it."[FN2]
[*3] Martin's fate remained a mystery until May 2008,when State Police again questioned Barsky regarding the events of March 1996. Barskyinitially repeated "the same [story] that [he] had told State Police investigators in 1996";upon further questioning, however, Barsky admitted what had transpired and thereafterled investigators to the cabin in the woods and the burial site. A subsequent search of therock crevice revealed a bedding comforter—rolled up like a"cigar"—containing a tooth fragment, and a further search of the area uncovered"[n]umerous bone fragments."[FN3]
Defendant thereafter was indicted and charged with one count of murder in thesecond degree. Following a jury trial, at which Barsky, a forensic mitochondrial DNAexaminer and a forensic anthropologist—among others—appeared andtestified, defendant was convicted as charged and was sentenced to a prison term of 15years to life, to be served consecutively to the sentence that defendant then was serving.Defendant now appeals, primarily contending that his conviction is against the weight ofthe evidence because there is insufficient evidence to corroborate Barsky's testimonyimplicating him in the attack.
Pursuant to CPL 60.22 (1), "[a] defendant may not be convicted of any offense uponthe testimony of an accomplice unsupported by corroborative evidence tending toconnect the defendant with the commission of such offense." The corroborative evidencerequired by the statute, however, "need not . . . establish each element of the[charged] offense or even an element of the offense" (People v Forbes, 111 AD3d 1154, 1157 [2013] [internalquotation marks and citations omitted]), nor must such evidence independently "provethat [defendant] committed" the crime in question (People v Reome, 15 NY3d 188, 192 [2010] [internalquotation marks and citation omitted]; see People v Pagan, 87 AD3d 1181, 1182 [2011], lvdenied 18 NY3d 885 [2012]). Rather, "[i]t is enough if [the corroborative evidence]tends to connect the defendant with the commission of the crime in such a way as mayreasonably satisfy the jury that the accomplice is telling the truth" (People vReome, 15 NY3d at 192 [internal quotation marks and citations omitted]; accordPeople v Forbes, 111 AD3d at 1157; see People v Pagan, 87 AD3d at 1182).Notably, "even [s]eemingly insignificant matters may harmonize with the accomplice'snarrative so as to provide the necessary corroboration" (People v Caban, 5 NY3d143, 155 [2005] [internal quotation marks and citation omitted]; accord People v Berry, 78AD3d 1226, 1227 [2010], lv denied 16 NY3d 828 [2011]).
Upon our review of the record, we find ample evidence to corroborate Barsky'saccomplice testimony. Brown confirmed that he helped procure beer and marihuana forBarsky and defendant on the afternoon of March 25, 1996 and thereafter assisteddefendant in transporting the beer to the cabin in the woods. Brown further testified thatalthough defendant invited him to meet up with Barsky and Martin at the cabin later thatevening, defendant never called Brown—as promised—to advise of themeeting time and, when Brown spoke with defendant at school the next day, defendantindicated that Martin "never showed up" to watch the comet. Additionally, as notedpreviously, Martin's brother testified that he overhead the three-way conversationbetween defendant, Barsky and Martin, wherein the three arranged to meet "for anevening of beer, marihuana and watching the comet." Indeed, defendant's own written[*4]statement—provided to the State Police fivedays after Martin's fatal encounter with defendant and received into evidence attrial—confirmed that he, Barsky and Martin planned to meet at the intersection ofSchwabie Turnpike and Samsonville Road between 10:45 p.m. and 11:00 p.m. on theevening in question "to hang out and watch the comet and drink some beer," but thatMartin "never showed up there."
In addition to the foregoing, various witnesses testified as to the location, appearanceand characteristics of both the cabin in the woods and the burial site—testimonythat was entirely consistent with the details provided by Barsky. As noted previously, asearch of what Barsky described as the burial site revealed, among other things, acomforter, a portion of a tooth and numerous bone fragments—all of whichthereafter underwent forensic analysis. Although no biological material apparently wasfound on the comforter, a forensic examiner from the Minnesota Bureau of CriminalApprehension Forensic Science Laboratory testified that she extracted mitochondrialDNA[FN4]
from a the tooth fragment recovered from the burial site, which she then compared tothe mitochondrial DNA extracted from a buccal swab provided by Martin's mother. Acomparison of those two profiles revealed that "the mitochondrial DNA profile obtainedfrom the . . . tooth . . . and the mitochondrial DNA profileobtained from the known sample [provided by Martin's mother] were the same."According to the examiner, one would expect to see this particular DNAprofile—outside of the Martin family's maternal line—in only .44% of theCaucasian population. Finally, the forensic anthropologist who examined the bonefragments recovered from the burial site—consisting of five hand bones, one footbone, one mandible (lower jaw) fragment and the tooth fragment—opined that allof the remains were human and, based upon the fusion (or lack thereof) in the relevantgrowth plates, belonged to an individual who was approximately 14 to 16 years old at thetime of death. Significantly, the forensic anthropologist noted a fracture to the left side ofthe mandible and opined that "the most likely mechanism for that fracture" would be alateral blow.
The foregoing evidence, in our view, is more than sufficient to provide the "slimcorroborative linkage" (People v Breland, 83 NY2d 286, 294 [1994]) required byCPL 60.22 (1). To the extent that defendant points out that it was Barsky who had a"beef" with Martin and, further, argues that Barsky's prior criminalhistory—together with the "sweetheart" plea deal he received in exchange for histestimony—renders such testimony "highly suspect," all of these issues were fullyexplored during cross-examination and, in the final analysis, posed credibility questionsfor the jury to resolve (see People v Forbes, 111 AD3d at 1157-1158).Accordingly, we do not find the jury's verdict to be against the weight of theevidence.
[*5] The remaining arguments raisedby defendant do not warrant extended discussion. To the extent that defendant contendsthat County Court abused its discretion in fashioning a Sandoval compromisewith respect to his 1998 conviction of murder in the second degree, whereby the Peoplewould be permitted to elicit from defendant—if he testified—that he wasconvicted of an unspecified felony but barred from exploring the nature thereof, wedisagree. Such conviction was not, in our view, too remote in time to be consideredpertinent and, as County Court properly noted, the conviction was indicative ofdefendant's willingness to place "his interests beyond those of society." In light of theappropriate limitations placed upon the use of the conviction to "diminish[ ] the prejudiceto defendant" (People vYoung, 115 AD3d 1013, 1014 [2014]; see People v Wolfe, 103 AD3d 1031, 1036 [2013], lvdenied 21 NY3d 1021 [2013]; People v Peele, 73 AD3d 1219, 1220 [2010], lvdenied 15 NY3d 894 [2010]), we have no quarrel with County Court's ruling on thispoint.
As for defendant's claim that County Court similarly abused its discretion inpermitting the People to elicit testimony from Barsky regarding defendant's alcohol andmarihuana use on the night of the attack, we note that defense counsel not only failed toobject to such testimony but, when expressly asked by County Court whether he wishedto be heard regarding whether such conduct constituted "bad act[s]," responded, "No."Accordingly, this issue is unpreserved for our review (see People v Williams, 89AD3d 1222, 1224 [2011], lv denied 18 NY3d 887 [2012]). Moreover, evenassuming such evidence was subject to a Molineux analysis (see People vMolineux, 168 NY 264, 293 [1901]), we would find such proof was "inextricablyinterwoven with the charged crime[ ], provide[d] necessary background or complete[d] awitness's narrative" and was, therefore, properly admitted (People v Burnell, 89 AD3d1118, 1120 [2011], lv denied 18 NY3d 922 [2012] [internal quotation marksand citation omitted]; accordPeople v Johnson, 106 AD3d 1272, 1274 [2013], lv denied 21 NY3d1043 [2013]). We reach a similar conclusion regarding defendant's September 2002suggestion that Barsky collect and dispose of Martin's remains (see People v Ballard, 38 AD3d1001, 1003 [2007], lv denied 9 NY3d 840 [2007]).
Nor do we find merit to defendant's claim that County Court erred in denying hisrequest for a mistrial after Barsky made reference to the fact that, while undergoingquestioning by the State Police in 2008, he was asked if he would be willing to undergo"a lie detector test." Defense counsel's immediate objection to such testimony wassustained, and County Court promptly instructed the jury to disregard any referencethereto. Inasmuch as Barsky neither disclosed whether he agreed to (or did in fact) take apolygraph test nor alluded to the results of any such test, we cannot say that CountyCourt erred in denying defendant's motion for a mistrial upon this ground (see Peoplev Vredenburg, 110 AD2d 730, 730 [1985]). Moreover, to the extent that suchtestimony could be construed as improper bolstering, we find any error in this regard tobe harmless, as there is no significant probability that the jury would have acquitteddefendant had it not heard the offending testimony (see People v Johnson, 57NY2d 969, 970 [1982]). Defendant's remaining contentions, including his assertion thatthe sentence imposed was harsh and excessive, have been examined and found to belacking in merit.
Peters, P.J., Stein and Rose, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:In their respectivewritten statements, both defendant and Barsky identified the quarry—not the cabinin the woods—as their destination that evening.
Footnote 2:Although it is unclearwhat Barsky meant by "winter of 2002," it appears that he collected and disposed ofMartin's remains prior to his September 2002 conversation with defendant.
Footnote 3:In August 2008, Barskywaived indictment and pleaded guilty to a superior court information charging him withmanslaughter in the first degree and thereafter was sentenced to 3
Footnote 4:As the forensic examinerexplained, each cell in the human body contains two forms of DNA—nuclearDNA and mitochondrial DNA. Nuclear DNA is inherited from both parents and isunique to a particular individual. Mitochondrial DNA, on the other hand, is inheritedonly from one's mother and, hence, is not unique to a particular individual. Where,however, there is "maternal linkage" between family members, such as between a motherand her child, those family members would have "the same mitochondrial DNA profile."Mitochondrial DNA testing was employed here because certain types of samples,including teeth, typically are not amenable to nuclear DNA testing.