| People v Wlasiuk |
| 2016 NY Slip Op 01004 [136 AD3d 1101] |
| February 11, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vPeter M. Wlasiuk, Appellant. |
Mitch Kessler, Cohoes, for appellant.
Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Chenango County (Cawley,J.), rendered October 26, 2012, upon a verdict convicting defendant of the crime ofmurder in the second degree.
After his third jury trial, defendant was once again convicted of murdering his wife(hereinafter the victim).[FN1] In the early morning hours of April 3,2002, the Chenango County Sheriff's Department responded to a report that a motorvehicle had crashed into Guilford Lake in Chenango County. At the scene, defendantinformed first responders that the victim had swerved to avoid a deer and, as a result, hadaccidentally driven his pick-up truck into the lake. Defendant asserted that he hadmanaged to escape from the vehicle, but had been unsuccessful in his attempts to dragthe victim to the surface after the vehicle submerged. The victim's body was ultimatelyrecovered from the bottom of the lake and, despite efforts to resuscitate her at the scene,she was pronounced dead upon her arrival at the emergency room. The ensuinginvestigation revealed evidence that contradicted defendant's version of events and alsoimplicated defendant as having murdered the victim at their home and staged a motorvehicle accident to cover up his crime. At the close of [*2]the third trial, defendant was again convicted as charged.Defendant was sentenced to a prison term of 25 years to life. He now appeals, and weaffirm.
Defendant argues that, because the People's theory that he smothered the victim todeath and then staged a motor vehicle accident to cover up his crime was purespeculation, the verdict was against the weight of the evidence. As relevant here, thePeople had to prove beyond a reasonable doubt that defendant caused the victim's deathafter having acted with the intent to do so (see Penal Law § 125.25[1]). While a contrary verdict would not have been unreasonable, considering that thejury could have believed defendant's version of events, we find defendant's convictionsto be supported by the weight of the evidence (see People v Green, 121 AD3d 1294, 1294-1295 [2014],lv denied 25 NY3d 1164 [2015]; People v Vanderhorst, 117 AD3d 1197, 1198-1200 [2014],lv denied 24 NY3d 1089 [2014]).
Here, among other things, defendant's contradictory statements to law enforcementpersonnel and others, the physical evidence concerning the victim's hair and plantmaterial,[FN2] thetestimony concerning an argument between defendant and the victim on the night of thevictim's death, the testimony of the People's accident reconstruction expert, and thefindings by the forensic pathologist who performed the autopsy on the victim providedample evidence that defendant intentionally caused the victim's death. Viewing theevidence in a neutral light and according deference to the jury's ability to "view thewitnesses, hear the testimony and observe demeanor, we defer to [its] credibilitydetermination and conclude that defendant's conviction[ ] [was] not against the weight ofthe evidence" (People vLanier, 130 AD3d 1310, 1311 [2015], lv denied 26 NY3d 1009 [2015][internal quotation marks and citation omitted]).
We are not persuaded by defendant's contention that the prosecutor's impropercomments during summation resulted in an unfair trial. Although we can agree that thesummation was not error free and that some of the comments were improper, reversal isrequired only where the prosecutorial misconduct results in substantial prejudice to thedefendant to such an extent that he or she was deprived of due process of law (seePeople v Ashwal, 39 NY2d 105, 109 [1976]; People v Newkirk, 75 AD3d 853, 857 [2010], lvdenied 16 NY3d 834 [2011]; People v Shutter, 72 AD3d 1211, 1214 [2010], lvdenied 14 NY3d 892 [2010]; People v Robinson, 16 AD3d 768, 770 [2005], lvdenied 4 NY3d 856 [2005]). Such is not the case here.
In determining whether prosecutorial misconduct deprived a defendant of a fair trial,this Court considers "its severity and frequency, the corrective action taken, if any, andwhether the result would likely have been the same in the absence of the conduct" (People v Casanova, 119 AD3d976, 979 [2014]; see Peoplev Goldston, 126 AD3d 1175, 1179 [2015], lv denied 25 NY3d 1201[2015]). Here, County Court sustained most of defendant's objections, admonished theprosecutor outside the presence of the jury for improperly "vouch[ing] for the witnessesand suggest[ing] that [there was] a community effort" to prosecute defendant andemphasized to the jurors during its charge that it was their "recollection of the facts inevidence [that was] controlling[,] not what either attorney ha[d] stated during theirsummations." Although the prosecutor vouched for the credibility of some of thePeople's witnesses by characterizing them [*3]as "goodmen and women" and "interested" and "concerned citizens," and invoked the word"community"—which was not the best practice—in the particular context ofthis trial, we view such remarks as a fair response to defendant's summation whereincounsel suggested that the People's witnesses were tailoring their testimony and possiblyeven colluding (see People vMoye, 12 NY3d 743, 744 [2009]; People v Galloway, 54 NY2d 396,399 [1981]; People vWilliamson, 77 AD3d 1183, 1185 [2010]). Inasmuch as the prosecutor'simproper comments were not pervasive, and a guilty verdict would have been likely intheir absence, we determine that the comments did not rise to such a level as to deprivedefendant of a fair trial (seePeople v Hopkins, 56 AD3d 820, 821 [2008]; People v Typhair, 12 AD3d832, 834 [2004], lv denied 4 NY3d 803 [2005]; cf. People v Wright, 133 AD3d1097, 1097-1099 [2015]; People v Wlasiuk, 32 AD3d 674, 681 [2006], lvdismissed 7 NY3d 871 [2006]).
Defendant further contends that County Court should have granted his request for awholly circumstantial evidence charge and that the court's failure to give such aninstruction deprived him of a fair trial. We disagree and find that County Court did, infact, give the legally appropriate charge (see People v Hardy, 26 NY3d 245, 249 [2015]). During thecharge conference, defense counsel indicated that defendant wanted a "full circumstantialevidence charge" read to the jury. County Court replied that it was giving a modifiedcharge and that it believed there to be direct evidence. Defense counsel objected, arguingthat there was no direct evidence of the crime. Thereafter, during its charge, CountyCourt instructed the jury as to the difference between direct and circumstantial evidence,set forth the legal definitions of both and never told the jury whether or not either type ofevidence was present.
We agree with defendant that his statements to his mother were circumstantialevidence, as they required an inference to be drawn and were not direct admissions ofguilt with respect to the charged crime (see People v Hardy, 26 NY3d at 251).However, in light of the particular circumstances present here, the testimony of forensicpathologist James Terezian constituted direct evidence that the victim died ofasphyxiation "due to smothering" and not from an accidental drowning (see generallyPeople v Denis, 276 AD2d 237, 244 [2000], lv denied 96 NY2d 782 [2001];compare People v Culver, 192 AD2d 10, 17 [1993], lv denied 82 NY2d716 [1993]). In any event, regardless of whether the pathologist's testimony constitutesdirect evidence, a review of the jury instructions reveals that County Court properlyinstructed the jury with respect to circumstantial evidence despite its earlier indicationthat it would not do so. Specifically, County Court instructed that the jury "must alwaysbe satisfied that the surrounding or collateral facts have been proven beyond a reasonabledoubt" and that any inference made "must flow reasonably and naturally from the factsproven [and] be consistent with all such facts proven." The court further advised the jurythat "[i]t must appear that the inference of guilt is the only one that can be fairly andreasonably drawn from the facts and that the evidence excludes beyond a reasonabledoubt every reasonable hypothesis of innocence." In this regard, although the court didnot read the pattern criminal jury instruction entitled "Circumstantial Evidence"verbatim, it modified the instruction slightly, while including all of the legally requiredlanguage; in our view, this was sufficient to apprise the jury of the governing law (seePeople v Dory, 59 NY2d 121, 129 [1983]) and renders defendant's appellatecontention unpersuasive (see e.g. People v Costa, 256 AD2d 809, 809 [1998],lv denied 93 NY2d 872 [1999]). Considering that County Court instructed thejury that it must be satisfied " 'that the inference of guilt is the only one that canfairly and reasonably be drawn from the facts, and that the evidence excludes beyond areasonable doubt every reasonable hypothesis of innocence' " (People vFord, 66 NY2d 428, 441 [1985], quoting People v Sanchez, 61 NY2d 1022,1024 [1984]; accord People v Perry, 251 AD2d 895, 898 [1998], lvdenied 94 NY2d 827 [1999]), County Court's circumstantial evidence charge wassufficient and, accordingly, defendant was not deprived of a fair trial.
[*4] Defendant's Molineux challenge has not beenproperly preserved for our review, and his remaining contention has been considered andfound to be without merit.
Lahtinen, J.P., McCarthy, Egan Jr. and Lynch, JJ., concur. Ordered that the judgmentis affirmed.
Footnote 1:Defendant's twoprevious convictions were reversed by this Court (90 AD3d 1405 [2011]; 32 AD3d 674[2006], lv dismissed 7 NY3d 871 [2006]).
Footnote 2:Evidence admitted attrial demonstrated that the victim's hair and clothing were matted with burrs from aburdock plant. Further, 18 strands of hair—likely to be the victim's—werefound in a burdock plant in the backyard of the home that the victim shared withdefendant. The victim's hair was also found in the bed of defendant's truck.