| People v Rodriguez |
| 2016 NY Slip Op 00400 [135 AD3d 1181] |
| January 21, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJoseph Rodriguez, Appellant. |
Paul J. Connolly, Delmar, for appellant.
D. Holley Carnright, District Attorney, Kingston (Jason P. Weinstein of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Ulster County(Williams, J.), rendered February 10, 2014, upon a verdict convicting defendant of thecrime of murder in the second degree.
After receiving a 911 call from defendant indicating that his two-year-old niece(hereinafter the victim) was missing, police arrived at defendant's residence to find hiswife holding the victim's body after it had been discovered in the yard nearby. Anautopsy performed the following day revealed that the victim's death was caused by bluntforce trauma to her head. Thereafter, defendant was charged in a sealed indictment withone count of murder in the second degree. Following a jury trial, defendant wasconvicted as charged and, thereafter, sentenced to a prison term of 25 years to life.Defendant appeals, and we affirm.
Defendant's challenges to the legal sufficiency of the evidence and the weight of theevidence in regard to the proof as to his identity as the perpetrator is without merit giventhe overwhelming evidence establishing his guilt. According to the wife's testimony, onthe morning in question, defendant assisted the other children in the home in preparingfor school and getting on the school bus. According to her, defendant returned to bedthereafter and informed her that the victim was still sleeping. Therefore, at that point, theonly three people in the home were defendant, the wife and the victim.
[*2] According to the wife, during that same morning,defendant appeared to receive two telephone calls from their neighbor regarding the factthat defendant had previously borrowed power tools from him. These apparentconversations prompted defendant to leave the bedroom on two separate occasions forshort periods of time, and defendant indicated, on both occasions, that he was leaving thebedroom to return tools to the neighbor. The neighbor testified that, on the samemorning, he did receive a voice mail message on his phone from defendant regarding thetools. However, the neighbor further testified that he was not at his home that morningand that he did not have any conversation with defendant regarding the return of thetools. When the neighbor returned home, he did not find that any of his tools had beenreturned. The wife further explained that, shortly after she got out of bed, she discoveredthat the victim was not in her bedroom. After calling 911, they began to search the areaoutside of the home. The wife testified that defendant then discovered the victim's bodynearby on top of a pile of leaves. According to the wife, while she had rushed over,picked up the victim and began to carry her away from that spot, defendant, upon seeingthe victim, had fallen to his knees nearby.
Police investigation thereafter uncovered various evidence relevant to establishingthe identity of the murderer. Evidence introduced at trial established that the police founddefendant's work boots in the master bedroom of the home and that DNA analysis of ablood spot on those boots revealed that the blood came from the victim.[FN1] Further evidenceestablished that a sink in an upstairs bathroom had traces of blood on it and that therewere bloody paper towels in a garbage receptacle in that same bathroom. The washingmachine in the home contained a single item of clothing. That item was a white, dampmen's T-shirt that smelled of bleach and had a red stain. The stain was later determined tobe blood, and that stain contained a DNA contribution from the victim.
Despite blood spatter analysis that indicated that the victim had been killed in theyard outside of the home, the police found a blood stain on the sill of a window in aguest bedroom. An air conditioner had also apparently been removed from the samewindow, as it was sitting on the floor nearby. Expert testimony established that this bloodwas directly applied to the window sill from some source.[FN2]
In canvassing the bloody leaves at and around the location where the victim's bodywas discovered, a set of car keys was discovered underneath the leaves. The wife'stestimony established that those keys were the sole set of keys to defendant's and her carand that she had not driven the car in the two prior days. In a statement to police,defendant indicated that he had driven the car the night before the victim's death.
The foregoing evidence reveals that defendant lied to his wife about his whereaboutson the morning in question and that, shortly after the victim's murder, two items ofdefendant's wardrobe were found with blood and the victim's DNA on them. One ofthose items appeared to [*3]have been recently cleanedwith bleach. Additional evidence found within the house indicated further efforts toclean up blood. Although defendant had not interacted with the victim's body when itwas discovered during his search with his wife, car keys last in defendant's possessionwere found underneath the bloody leaves surrounding the victim's body. Considered as awhole, the evidence introduced at trial overwhelmingly establishes that defendant wasthe perpetrator of the victim's murder (see People v Miles, 15 AD3d 686, 687-688 [2005], lvdenied 4 NY3d 855 [2005]). Accordingly, his arguments that the evidence waslegally insufficient and that the verdict was against the weight of the evidence arewithout merit.
Further, we reject defendant's contention that County Court's denial of his motion forthe People to disclose polygraph data from an exam of his wife merits reversal. To theextent that County Court explicitly agreed with defendant that the question and answerportion of the polygraph was subject to disclosure, this inquiry solely focuses on thephysiological data collected during the examination and any interpretations of it.Assuming, without deciding, that a polygraph examination is a "scientific test orexperiment" subject to disclosure (CPL 240.20 [1] [c]; see People v Mondon, 129Misc 2d 13, 15-16 [Sup Ct, NY County 1985]), any error here in denying such disclosureis harmless. Polygraph results are unquestionably inadmissible (see People v Stevens, 95 AD3d1451, 1454 n 2 [2012], lv denied 19 NY3d 1029 [2012]; People v Weber, 40 AD3d1267, 1267 [2007], lv denied 9 NY3d 927 [2007]; see generally People vAngelo, 88 NY2d 217, 222-223 [1996]). Further, defendant has not offered anyexplanation for how such inadmissible materials could have assisted him in eitherpreparing for trial or litigation. Accordingly, we perceive no reasonable basis to concludethat the disclosure of such data could have affected the outcome of the trial.
Next, we also reject defendant's argument that his statement to a child protectiveservices (hereinafter CPS) worker should have been suppressed. Defendant's contentionthat his right to counsel was violated during such an interview depends on whether theCPS worker was an agent of the police. " '[S]ocial workers are generally notagents of the police,' although they may be considered agents under certaincircumstances" (People vWhitmore, 12 AD3d 845, 847 [2004], lvs denied 4 NY3d 769, 892[2005], quoting People v Greene, 306 AD2d 639, 641 [2003], lv denied100 NY2d 594 [2003]). Here, although the CPS worker was on a task force that includedmembers of law enforcement, he testified that he did not consult with any lawenforcement regarding his plans to interview defendant. Further, no law enforcementwere present at that interview. Accordingly, where police had no involvement in the CPSworker's initiation or execution of an interview with defendant, the CPS worker did notact as a police agent (see Peoplev Texidor, 71 AD3d 1190, 1191 [2010], lv denied 14 NY3d 893 [2010];People v Whitmore, 12 AD3d at 847; compare People v Slocum, 133 AD3d 972, 977-978[2015]; People v Wilhelm,34 AD3d 40, 46-49 [2006]; People v Greene, 306 AD2d at 640-641).Accordingly, defendant's right to counsel was not implicated by the interview.
We further conclude that none of the wife's testimony was barred by the maritalprivilege. As is relevant to this inquiry, testimony by a spouse with regard to observationsand communications that constitute mere "daily and ordinary exchanges" betweenspouses are not subject to the protections of the marital privilege (People vMelski, 10 NY2d 78, 80 [1961]; see People v Vargas, 60 AD3d 1236, 1239 [2009], lvdenied 13 NY3d 750 [2009]). In any event, a defendant waives any protectionafforded by the marital privilege when he or she reveals the substance of otherwiseprotected communications (seePeople v Parker, 49 AD3d 974, 978 [2008], lv denied 10 NY3d 868[2008]; see also People vJacob, 117 AD3d 1079, 1080 [2014], lv denied 23 NY3d 1063 [2014]).None of the wife's testimony that related to defendant's actions and statements on the dayin question concerned communications that "would not have been made but for theabsolute confidence in, and induced by, the marital relationship" (People v [*4]Wilson, 64 NY2d 634, 636 [1984] [internal quotationmarks and citation omitted]). Further, defendant essentially repeated the same facts as tothose communications in the multiple statements that he thereafter made to third parties(see People v Parker, 49 AD3d at 978).
Defendant's contentions regarding erroneous evidentiary rulings and impropercomments by the People during summation are unpreserved, and we decline to invokeour interest of justice jurisdiction to take corrective action. To the extent that defendantclaims that the failure to preserve such contentions amounted to ineffective assistance ofcounsel, we disagree. Although the jury could have possibly inferred from the evidencethat defendant had spent the evening before the murder working as a pimp, defendant hasnot shown the absence of strategy of counsel's choice not to draw attention to that bad actevidence by objecting to its introduction; given that there was no explicit evidence thatdefendant acted as a pimp, an objection could have potentially increased the probabilitythat the jury would make such an inference (see generally People v Benevento,91 NY2d 708, 712 [1998]). To the extent that counsel failed to object to certain isolatedimproper comments during summation, such deficiencies did not rise to the level ofdenying defendant the effective assistance of counsel (People v Fisher, 89 AD3d1135, 1139 [2011], lv denied 18 NY3d 883 [2012]; People v Albanese, 38 AD3d1015, 1019 [2007], lv denied 8 NY3d 981 [2007]). Defendant's remainingarguments have been examined and are also without merit.
Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Defendant contends thatit is important to note that further evidence was introduced that the victim had suffered abloody lip two weeks prior to her death.
Footnote 2:Defendant contends thatthis evidence found in the guest room goes to reasonable doubt as to whether an intrudermurdered the victim. The People contend that the same evidence is merely indicative ofthe fact that defendant attempted to cover up his crime by staging evidence of anintrusion.