| People v Johnson |
| 2015 NY Slip Op 08540 [133 AD3d 1309] |
| November 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRobert E. Johnson, Appellant. |
Patricia M. McGrath, Lockport, for defendant-appellant.
Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.),rendered January 26, 2010. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree and criminal possession of a weapon in the fourth degree(three counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of murder in the second degree (Penal Law § 125.25 [1]) and threecounts of criminal possession of a weapon in the fourth degree (§ 265.01[2]), stemming from the brutal murder of his wife at their home. When the police arrived,they found the victim lying face down on the kitchen floor in a pool of blood. A medicalexaminer testified that the victim sustained 22 stab wounds and 27 cutting wounds. Theevidence established that at least three different knives were used, and that two kniveswith broken handles were left protruding from the victim's body.
Contrary to defendant's contention, County Court properly refused to suppressstatements he made at the crime scene because he was not in custody or subject tointerrogation at that time (seePeople v Paulman, 11 AD3d 878, 878-879 [2004], affd 5 NY3d 122[2005]; People v Kaufman, 288 AD2d 895, 896 [2001], lv denied 97NY2d 684 [2001]). The court also properly refused to suppress statements defendantmade at the police station that evening. After about 10 to 15 minutes of questioning at hishome, defendant agreed to accompany the police to the station for further questioning.Defendant was never restrained in any way, he was free to use the restroom, he wasoffered food and drink, and he was told that he was free to leave. After approximatelythree hours, the interview ended when defendant indicated that he wanted to leave.Under the circumstances, we agree with the court that defendant was not in custodywhile at the station (see People v Petrovich, 202 AD2d 523, 523-524 [1994],affd 87 NY2d 961 [1996]; People v Murphy, 43 AD3d 1276, 1276-1277 [2007], lvdenied 9 NY3d 1008 [2007]; People v Dozier, 32 AD3d 1346, 1346 [2006], lvdismissed 8 NY3d 880 [2007]).
The court also properly refused to suppress the swab of the blood stain taken fromdefendant's torso. Defendant agreed to give his clothing to the police and, when heremoved his shirt, an officer noticed a reddish brown stain on defendant's chest thatappeared to be blood. When asked what it was, defendant responded that it was a bruise.The officer swabbed the area, which later tested positive for blood and matched thevictim's DNA. Where, as here, the police did not obtain a warrant for the seizure of theblood evidence, "the police had to satisfy two requirements in order to justify the actiontaken. First, the police had to have reasonable cause to believe the [blood stain]constituted evidence, or tended to demonstrate that an offense had been committed, or,that a particular person participated in the commission of an offense . . .Second, there had to have been an exigent circumstance of sufficient magnitude to justifyimmediate seizure without resort to a warrant" (People v Thomas, 188 AD2d 569,571 [1992], lv denied 81 NY2d 1021 [1993]; see People v Loomis, 17 AD3d 1019, 1020-1021 [2005],lv denied 5 NY3d 830 [2005]). We agree with the court that the police hadreasonable cause to believe that the blood stain on defendant's chest constituted evidence,and that the seizure was appropriate because it could have been easily [*2]destroyed by defendant (see Cupp v Murphy, 412US 291, 296 [1973]; People v Berzups, 49 NY2d 417, 427 [1980]).
Contrary to defendant's contention, the evidence is legally sufficient to support theconviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Defendant further contends that the court erred in allowing a witness to testifyconcerning defendant's prior bad act, i.e., his request to have a third-party "cut up hiswife." Even assuming, arguendo, that the court erred in allowing that testimony, weconclude that the error is harmless (see generally People v Crimmins, 36 NY2d230, 241-242 [1975]). The circumstantial evidence of defendant's guilt is overwhelming,and there is no significant probability that defendant would have been acquitted but forthe error (see People v Guarino, 298 AD2d 937, 937 [2002], lv denied 98NY2d 768 [2002]; see alsoPeople v Tyes, 30 AD3d 1045, 1046 [2006], lv denied 7 NY3d 795[2006]).
Defendant failed to preserve for our review his contention that he was denied a fairtrial by prosecutorial misconduct on summation (see People v Williams, 128 AD3d 1522, 1524 [2015],lv denied 25 NY3d 1209 [2015]) and, in any event, the prosecutor's remarks wereeither fair response to defense counsel's summation (see People v Melendez, 11 AD3d 983, 984 [2004], lvdenied 4 NY3d 888 [2005]), or fair comment on the evidence (see People v Graham, 125AD3d 1496, 1498 [2015]). Defendant's belated motion for a mistrial is insufficientto preserve for our review his contention that a detective improperly commented ondefendant's right to remain silent (see People v Woods, 284 AD2d 995, 996[2001], lv denied 96 NY2d 926 [2001]; People v Okon, 184 AD2d 664,664 [1992]; see also People vHarden, 26 AD3d 887, 888 [2006], lv denied 6 NY3d 834 [2006]). Inany event, although we agree with defendant that the People's use of defendant's selectivesilence during the interrogation that occurred the day after the murder was improper (see People v Williams, 25NY3d 185, 193 [2015]), we agree with the People that the error is harmless (seegenerally id. at 194).
Defendant's contention that the court erred in denying his CPL 440 motion is notproperly before us inasmuch as defendant did not obtain leave to appeal from this Court(see CPL 460.15; People v Jacobs, 188 AD2d 1032, 1032 [1992], lvdenied 81 NY2d 887 [1993]). We have considered defendant's remainingcontentions and conclude that they are without merit. Present—Smith, J.P., Centra,Valentino, Whalen and DeJoseph, JJ.