| People v Lippe |
| 2016 NY Slip Op 08884 [145 AD3d 1035] |
| December 28, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Werner Lippe, Appellant. |
Summers & Schneider, P.C., Brooklyn, NY (Douglas M. Schneider of counsel),for appellant.
James A. McCarty, Acting District Attorney, White Plains, NY (John J. Carmody,Laurie G. Sapakoff, and Steven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Zambelli, J.), rendered March 29, 2011, convicting him of murder in the second degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's wife disappeared on October 3, 2008. Approximately three weekslater, the defendant confessed to a friend, over the course of several conversationsrecorded by the police, that he had knocked his wife unconscious with a piece of woodand then burned her body in a 55-gallon drum in his backyard until there was nothing leftof it. The defendant boasted to his friend that he had so thoroughly disposed of his wife'sbody that the police would find no trace of it even if they were to use a magnifying glass.In fact, no physical evidence was recovered from the defendant's house or property.When the police confronted the defendant with the recorded confessions, the defendantat first denied the truth of what he had told his friend, but then confessed again. Thedefendant was arrested and charged with his wife's murder.
The defendant was tried twice. At the first trial, the People introduced into evidencethe defendant's confessions to his friend and to the police. The defendant testified on hisown behalf and stated that he had fabricated the story of killing his wife. A mistrial wasdeclared when the jury was unable to reach a verdict. At the second trial, the Peopleintroduced into evidence the defendant's confessions to his friend, but not his confessionto the police. The defendant sought, on his own case, to introduce his confession to thepolice, but the County Court ruled that that confession was inadmissible on the issue forwhich it was being offered. The jury convicted the defendant of murder in the seconddegree.
Contrary to the defendant's contention, the County Court did not err at the secondtrial in rejecting his attempt to introduce into evidence the confession that he made to thepolice. Preliminarily, we note that the defendant's contention that he was deprived of theconstitutional right to present a defense by the court's preclusion of this evidence isunpreserved for appellate review (see CPL 470.05 [2]; People v Lane, 7 NY3d888, 889 [2006]). In any event, it is without merit.
[*2] Certainly, at the first trial, the defendant's confessionto the police, offered by the People to prove the defendant's guilt, was admissible as anexception to the hearsay rule (see People v Leslie, 41 AD3d 510, 510 [2007]; JeromePrince, Richardson on Evidence § 8-251 at 552 [Farrell 11th ed 1995]). Buta defendant's confession may be excluded as hearsay when the defendant offers it asexculpatory proof of a different fact. Here, at the second trial, the defendant sought tointroduce his confession to the police for the purpose of proving the falsity of hisconfessions to his friend. The defendant contended that his confession to the police wasso inherently unbelievable that the jury could rationally conclude that, in making it, thedefendant was signaling to the police that his confessions to his friend were completelyuntruthful and resulted from his fear of his friend. There was, however, no logicalprocess by which a jury could conclude that the defendant's confessions to his friendwere false based on the minor differences between the defendant's confessions to hisfriend and his confession to the police. The defendant's confessions to his friend weresubstantially similar in all important respects to his confession to the police. Thus, theCounty Court properly found that the confession to the police simply had no probativevalue as to the issue on which the defendant offered it (see People v Myles, 282AD2d 476, 476 [2001]; People v Deutsch, 235 AD2d 330, 330 [1997];People v Hendrix, 190 AD2d 752, 752 [1993]; Jerome Prince, Richardson onEvidence § 4-101 at 136 [Farrell 11th ed 1995]). Accordingly, the court didnot err in excluding the defendant's confession to the police when offered on thedefendant's case.
The defendant's contention that the County Court erred when it denied his motion,made before the first trial, to present expert testimony on the issue of false confessions isunpreserved for appellate review since the defendant did not renew that motion prior tothe second trial (see CPL 470.05 [2]; People v Walker, 71 NY2d 1018,1020 [1988]; People v Malizia, 62 NY2d 755, 758 [1984]). In any event, thisargument is without merit since the defendant's motion failed to provide an expert profferto establish that the requested testimony would be "relevant to the defendant andinterrogation before the court" (People v Bedessie, 19 NY3d 147, 161 [2012]; see People v Days, 131 AD3d972, 977-981 [2015];People v Roman, 125 AD3d 515, 515-516 [2015]).
The defendant contends that the County Court erred in permitting the People topresent to the jury testimonial and photographic evidence regarding two demonstrations,both of which related to the feasibility of burning a body in a 55-gallon drum within a24-hour period. We disagree. Demonstrations and tests, when relevant to a contestedissue, can "play a positive and helpful role in the ascertainment of truth" (People vAcevedo, 40 NY2d 701, 704 [1976]). It is for the trial court, in the exercise of itssound discretion, based upon the nature of proof and the context in which it is offered, todetermine whether the value of the evidence outweighs its potential for prejudice (seePeople v Acevedo, 40 NY2d at 704). Here, it was within the court's broad discretionto conclude that the value of the testimony about, and the photographs of, the firstdemonstration, in which a female trooper of comparable size to the victim had climbedinto a 55-gallon drum to demonstrate that it was, in fact, possible for the victim to fit intoa 55-gallon drum, did not outweigh its potential for prejudice (see People v Caballero, 34AD3d 690, 692 [2006]; People v Bierenbaum, 301 AD2d 119, 152 [2002]).Similarly, the court did not improvidently exercise its discretion in admitting intoevidence testimony about and photographs of a demonstration that an expert witnessperformed in California, in which a human cadaver was burned in a 55-gallon drum.Notwithstanding the gruesome aspects of some of the photographs included therein, thedemonstration tended to prove the feasibility of the People's theory of the case, which,after all, was based entirely on what the defendant admitted as to how he disposed of hiswife's body (see People v Wood, 79 NY2d 958, 960 [1992]; People vStevens, 76 NY2d 833, 835 [1990]; People v Pobliner, 32 NY2d 356, 369[1973]; People v Rivera, 74AD3d 993, 994 [2010]; People v Sampson, 67 AD3d 1031, 1032 [2009]; People v Dickerson, 42 AD3d228, 237 [2007]; People vDiaz, 35 AD3d 226, 227 [2006]). Any differences between the demonstrationsand what the defendant said he had done with his wife's body—which werehighlighted on cross-examination—did not affect the admissibility of the evidenceabout the demonstrations, but were relevant to the weight that the jury accorded thatevidence (see People vClyburn-Dawson, 128 AD3d 1350, 1352-1353 [2015]; People v Raucci, 109 AD3d109, 122-123 [2013]; People v Gorham, 72 AD3d 1108, 1110 [2010]).
The defendant's contention that he was deprived of a fair trial due to improperremarks by the prosecutor on cross-examination and during summation is partiallyunpreserved for appellate review (see CPL 470.05 [2]; People v Romero, 7 NY3d911, 912 [2006]; People vBanks, 74 AD3d 1214, 1215 [2010]). In any event, to the extent that some of thechallenged [*3]remarks were improper, those remarks didnot deprive the defendant of a fair trial (see People v Mason, 132 AD3d 777, 778 [2015], lvgranted 26 NY3d 1147 [2016]; People v Wallace, 123 AD3d 1151, 1152 [2014];People v Roopchand, 107 AD2d 35, 36 [1985], affd 65 NY2d 837[1985]).
The defendant's contention that the County Court impermissibly precluded him fromeliciting testimony on cross-examination regarding the victim's diagnosis of anhedoniaand prescription for anti-depressants is without merit. Although the defendant's right tocross-examine is protected by the Federal and State Constitutions (see US Const6th Amend; NY Const, art I, § 6), trial courts retain wide discretion toimpose reasonable limits on cross-examination "based on concerns about, among otherthings, harassment, prejudice, confusion of the issues, the witness' safety, or interrogationthat is repetitive or only marginally relevant" (Delaware v Van Arsdall, 475 US673, 679 [1986]; see People v Pereda, 200 AD2d 774 [1994]; People vAshner, 190 AD2d 238, 246 [1993]). Here, the court did not improvidently exerciseits discretion in limiting the defendant's cross-examination, as the defendant's proposedlines of inquiry were without foundation (see People v Kinard, 215 AD2d 591[1995]).
The defendant's remaining contention is without merit. Balkin, J.P., Dickerson,LaSalle and Brathwaite Nelson, JJ., concur.