| People v Johnson |
| 2015 NY Slip Op 03035 [127 AD3d 451] |
| April 9, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Lawrence Johnson, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Claudia S. Trupp ofcounsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Orrie A. Levy of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Seth L. Marvin, J., at suppression hearing;Peter J. Benitez, J., at jury trial and sentencing), rendered August 13, 2012, convictingdefendant of murder in the second degree, and sentencing him to a term of 25 years tolife, unanimously affirmed.
The court's suppression rulings were proper. The initial police questioning at issuedid not require Miranda warnings, because a reasonable innocent person indefendant's position would not have thought he was in custody (see People vYukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]). Defendantagreed to accompany the police to the police station, where the questioning at issue wasinvestigatory. When viewed as a whole, the police conduct, including any restrictions ondefendant's movements within the station house, did not convey to defendant that he wasbeing prevented from leaving the building. The court also properly determined, afterweighing the relevant factors (see People v Paulman, 5 NY3d 122, 130-131 [2005]), thatdefendant's videotaped statement to an Assistant District Attorney was attenuated fromcertain statements to the police that the court had suppressed.
The verdict was based on legally sufficient evidence and was not against the weightof the evidence (People vDanielson, 9 NY3d 342 [2007]). There is no basis for disturbing the jury'sevaluation of defendant's confession and the medical evidence. The evidence supportsthe conclusion that defendant committed depraved indifference murder, of the typediscussed in People vBarboni (21 NY3d 393, 402-403 [2013]). Defendant brutally and repeatedlystruck his three-month-old daughter in the head while she was lying in her bassinet, andthen failed to seek medical attention. The jury could have reasonably inferred thatdefendant knew that the type of blows he inflicted on such a young child would requireemergency treatment.
The lack of a jury instruction on corroboration of defendant's confession (seeCPL 60.50) was harmless in light of the independent evidence clearly establishing thatthe offense had been committed (see People v Rosado, 194 AD2d 466 [1st Dept1993], lv denied 82 NY2d 725 [1993]).
The court properly denied defendant's CPL 330.30 (3) motion to set aside the verdicton the ground of newly discovered evidence since defendant failed to establish, amongother things, that the medical evidence could not have been discovered earlier by theexercise of due diligence and that it created a probability of affecting the verdict.Defendant did not establish any other legal basis for setting aside the verdict, or any needfor an evidentiary hearing.
The court properly declined to submit criminally negligent homicide as a lesserincluded offense (see People vAbreu-Guzman, 39 AD3d 413, 413-414 [1st Dept 2007], lv denied 9NY3d 872 [2007]; see also People v Nieves, 136 AD2d 250, 258-259 [1st Dept1988]).
We perceive no basis for reducing the sentence. Concur—Gonzalez, P.J.,Mazzarelli, Saxe, Manzanet-Daniels and Clark, JJ.
Motion to strike portions of the People's brief granted to the extent consented to bythe People, and otherwise denied.