| People v Figueroa-Norse |
| 2014 NY Slip Op 05714 [120 AD3d 913] |
| August 8, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vZoraida Y. Figueroa-Norse, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.
Cindy F. Intschert, District Attorney, Watertown, for respondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.),rendered January 17, 2012. The judgment convicted defendant, upon a jury verdict, ofassault in the second degree and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting her following a jurytrial of assault in the second degree (Penal Law § 120.05 [8]) andendangering the welfare of a child (§ 260.10 [1]) based on life-threateninginjuries she caused to her then eight-year-old foster child. The victim sustained a headinjury that rendered her unconscious and required surgery to relieve pressure on herbrain. She was in a coma for approximately one month and, at the time of trial, sufferedparalysis on the left side of her body as a result of the injury. In addition, the victimsustained an injury to her abdomen that resulted in perforation of her digestive systemand also required surgery. Due to the nature of her head injury, the victim could notrecall how she was injured. Defendant was arrested after her brother informed the policethat she had assaulted the child at his home.
Defendant contends that County Court erred in refusing to suppress statements shemade to the deputy sheriff who questioned her at the hospital where the victim was taken.According to defendant, her statements were involuntary because they were not precededby Miranda warnings. We reject that contention. "In determining whether adefendant was in custody for Miranda purposes, '[t]he test is not what thedefendant thought, but rather what a reasonable [person], innocent of any crime, wouldhave thought had he [or she] been in the defendant's position' " (People v Kelley, 91 AD3d1318, 1318 [2012], lv denied 19 NY3d 963 [2012], quoting People vYukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]). Here,defendant was not restrained in any way, nor was she told that she had to answer thedeputy sheriff's questions. Although defendant was with the deputy sheriff at the hospitalfor approximately 10 hours, the questioning was not continuous, and defendant wasgiven multiple breaks to use the bathroom and obtain beverages. Defendant declined anoffer of food and had contact by cell phone with her brother and mother. At one point,defendant left the hospital on her own to retrieve items from her vehicle, and thenreturned to the hospital for further questioning. Moreover, the record of the Huntleyhearing establishes that the questioning was investigatory rather than accusatory innature (see People vSmielecki, 77 AD3d 1420, 1421 [2010], lv denied 15 NY3d 956 [2010];People v Murphy, 43 AD3d1276, 1277 [2007], lv denied 9 NY3d 1008 [2007]). Finally, defendant didnot make any admissions and was allowed to go home after the interview was completed.Under the circumstances, we conclude that "a reasonable person in defendant's position,innocent of any crime, would not have believed that he or she was in custody, and thusMiranda warnings were not required" during the interview (People v Lunderman, 19 AD3d1067, 1068 [2005], lv denied 5 NY3d 830 [2005]; see People v Jones, 110 AD3d1484, 1485 [2013], lv denied 22 NY3d 1157 [2014]; People v Zuke, 87 AD3d1290, 1291 [2011], lv denied 18 NY3d 887 [2012]).
We likewise reject defendant's contention that the statements were involuntary withinthe meaning of CPL 60.45 (2) because her will was overborne by the length of thequestioning and promises made to her by the deputy sheriff. Defendant was not coercedby the use or threatened use of physical force, and, even assuming, arguendo, that thedeputy sheriff promised defendant that she could talk to the victim's surgeon if shecooperated with the police, as defendant testified at the Huntley hearing, weconclude that such promise did not create "a substantial risk that the defendant mightfalsely incriminate [herself]" (CPL 60.45 [2] [b] [i]). Indeed, as noted, defendant did notincriminate herself during the interview, and she was not arrested until five dayslater.
Defendant contends that she was deprived of her right to a proper jury because aprospective juror did not serve on the jury despite not having been struck or challenged.Because defendant did not object to the failure of that prospective juror to be seated onthe jury, however, she failed to preserve that contention for our review (see People v Hayes, 71 AD3d1477 [2010], lv denied 15 NY3d 751 [2010]), and we decline to exercise ourpower to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). We note in any event that we perceive no prejudice todefendant arising from the failure of the prospective juror to be seated. As the Court ofAppeals explained in a different context, "[e]ven if a juror is wrongly but not arbitrarilyexcused, the worst the court will have done in most cases is to have replaced oneimpartial juror with another impartial juror" (People v Culhane, 33 NY2d 90, 108n 3 [1973]; see People v Arnold, 96 NY2d 358, 362 [2001]).
Defendant also failed to preserve for our review her contention that the court shouldhave removed a seated juror who the court noticed had "nodded off" during thepreliminary instructions and opening statements (see CPL 470.05 [2]). The courtlearned from the juror during a discussion at the bench that she was tired due to herdiabetes medication, and the court decided to adjourn the trial until the next morning toallow the juror to get a good night's sleep. Although present for the discussion at thebench with the juror, defense counsel did not object to the court's course of action orrequest that the juror be removed as "grossly unqualified" (CPL 270.35 [1]). We notethat there is no indication in the record that the juror missed any of the evidencepresented at trial, and we decline to exercise our power to review defendant's contentionas a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
We reject defendant's contention that the evidence is legally insufficient to supportthe conviction. Viewing the evidence in the light most favorable to the People, as wemust (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that" 'there is a valid line of reasoning and permissible inferences from which arational jury could have found the elements of the crime[s] proved beyond a reasonabledoubt' " (People vDanielson, 9 NY3d 342, 349 [2007]; see generally People v Bleakley, 69NY2d 490, 495 [1987]). Defendant's brother testified that he observed defendant strikethe victim in the face between five and seven times on the day in question. According todefendant's brother, the victim then ran from the house bleeding from the nose andmouth, and defendant later carried the victim back inside and placed her in the basementas a form of "timeout." When defendant's brother checked on the victim approximately20 minutes later, the victim was unconscious. Contrary to defendant's contention, herbrother's testimony was not "incredible as a matter of law," i.e., " 'unbelievable asa matter of law, manifestly untrue, physically impossible, contrary to experience, orself-contradictory' " (People v Bush, 107 AD3d 1581, 1582 [2013], lv denied22 NY3d 954 [2013]; seePeople v Harris, 56 AD3d 1267, 1268 [2008], lv denied 11 NY3d 925[2009]). We note in addition that defendant admitted at trial that she lied to the deputysheriff when she said that the victim had fallen out of her arms and landed on thedriveway, and that she told the same lie to several other people, including the victim'spaternal grandfather, the victim's psychologist, and a social worker whom defendantphoned while driving the victim to the hospital. Defendant also admittedly lied when shetold numerous people that the victim consumed some type of rancid liquid and had beenvomiting all day.
Viewing the evidence in light of the elements of the crimes as charged to the jury(see Danielson, 9 NY3d at 349), we further conclude that the verdict is notagainst the weight of the evidence (see generally Bleakley, 69 NY2d at 495).Although a different verdict would not have been unreasonable, it cannot be said that thejury failed to give the evidence the weight it should be accorded (see generallyid.). The jury was entitled to credit the testimony of defendant's brother over that ofdefendant, and we afford great deference to the jury's credibility determinations. "[T]hosewho see and hear the witnesses can assess their credibility and reliability in a manner thatis far superior to that of reviewing judges who must rely on the printed record" (People v Lane, 7 NY3d888, 890 [2006]; see Peoplev Roberts, 111 AD3d 1308, 1309 [2013], lv denied 23 NY3d 967[2014]; People v Allen, 93AD3d 1144, 1147 [2012], lv denied 19 NY3d 956 [2012]).
Even assuming, arguendo, that we agree with defendant that the court erred indenying her request to admit in evidence a statement given to the police by a neighbor ofdefendant's brother who had died prior to trial (see generally People v Robinson,89 NY2d 648, 652-653 [1997]), we conclude that such error is harmless. The proof ofguilt is overwhelming, and there is no reasonable possibility that defendant would havebeen acquitted if the statement had been admitted (see generally People vCrimmins, 36 NY2d 230, 237 [1975]).
We have reviewed defendant's remaining contentions and conclude that they lackmerit. Present—Smith, J.P., Peradotto, Lindley, Sconiers and Whalen, JJ.