| People v Cartagena |
| 2017 NY Slip Op 03307 [149 AD3d 1518] |
| April 28, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Candace J. Cartagena, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of counsel), fordefendant-appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Daniel J. Punch of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered August26, 2014. The judgment convicted defendant, upon a nonjury verdict, of murder in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her, upon a nonjury verdict, ofmurder in the second degree (Penal Law § 125.25 [1]). Although defendant failed topreserve for our review her challenge to the legal sufficiency of the evidence, we "necessarilyreview the evidence adduced as to each of the elements of the crime[ ] in the context of ourreview of defendant's challenge regarding the weight of the evidence" (People v Stephenson, 104 AD3d1277, 1278 [2013], lv denied 21 NY3d 1020 [2013], denied reconsideration23 NY3d 1025 [2013] [internal quotation marks omitted]).
It is well established that " '[i]ntent to kill may be inferred from defendant's conductas well as the circumstances surrounding the crime' " (People v Badger, 90 AD3d 1531,1532 [2011], lv denied 18 NY3d 991 [2012]). The People presented evidence throughexpert testimony that the victim's cause of death was asphyxia by neck or chest compression.That determination was based on the medical evidence as well as the fact that the victim wasfound: (1) face up with her shirt raised up half way; (2) with only one sock on half way; and (3)next to a pillow on bedding that appeared to be disheveled. In addition, the People presentedevidence that defendant was the only person with the victim at the time of the victim's death andthat defendant provided widely inconsistent accounts of her whereabouts and actions leading upto, and following, the victim's death. Although circumstantial in nature, when viewed in the lightmost favorable to the People, we conclude that the evidence is sufficient to establish thatdefendant intentionally killed the victim (see Stephenson, 104 AD3d at 1278-1279; People v Thibeault, 73 AD3d1237, 1239-1240 [2010], lv denied 15 NY3d 810 [2010], cert denied 562 US1293 [2011]).
Viewing the evidence in light of the elements of the crime in this nonjury trial (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). While " 'a findingthat defendant did not intend to kill the victim[ ] would not have been unreasonable. . . , it cannot be said that County Court, which saw and heard the witnesses andthus was able to assess their credibility and reliability in a manner that is far superior to that ofreviewing judges who must rely on the printed record, failed to give the evidence the weight itshould be accorded' " (Badger, 90 AD3d at 1532). The court in this nonjury trial"was free to credit the opinion expressed by the People's expert[s] and reject that of defendant'sexpert" (People v Costa, 256 AD2d 809, 809 [1998], lv denied 93 NY2d 872[1999]; see People v Benson, 119AD3d 1145, 1148 [2014], lv denied 24 NY3d 1118 [2015]; People v Stein,306 AD2d 943, 944 [2003], lv denied 100 NY2d 599 [2003], denied uponreconsideration 1 NY3d 581 [2003]).
[*2] Defendant also contends that defense counsel was ineffective for failing to preserve for ourreview his challenge to the legal sufficiency of the evidence. We note, however, that we havereviewed the sufficiency of the evidence in determining whether the verdict is against the weightof the evidence.
Contrary to defendant's further contention, we conclude that the court did not err in refusingto suppress statements she made to two police officers en route to the Erie County MedicalCenter (ECMC) and at the emergency room of the ECMC. When the police arrived at defendant'shouse, they were informed that a young girl was found dead in a bedroom and that defendant wasinside a shed in the backyard. Defendant was removed from the shed and placed in anambulance, where she indicated that she had tried to commit suicide. Defendant was thentransported to the ECMC. In our view, defendant was not in police custody when defendant madethe statements during that time period and, in any event, we conclude that the questions asked ofher were investigatory rather than accusatory in nature (see People v Carbonaro, 134 AD3d 1543, 1547 [2015], lvdenied 27 NY3d 994 [2016], denied reconsideration 27 NY3d 1149 [2016]).Furthermore, while a defendant's involuntary commitment under Mental Hygiene Law§ 9.41 is a relevant factor in determining whether he or she is in custody forMiranda purposes (see People v Turkenich, 137 AD2d 363, 366-367 [1988];cf. People v Ripic, 182 AD2d 226, 232-233 [1992], appeal dismissed 81 NY2d776 [1993], rearg denied 81 NY2d 955 [1993]; see generally People v Heck, 103 AD3d 1140, 1142 [2013], lvdenied 21 NY3d 1074 [2013]), we conclude that it is not dispositive in this case.
Defendant failed to preserve for our review her contention that she was deprived of a fairtrial by prosecutorial misconduct on summation inasmuch as counsel failed to challenge any ofthose comments during summation and raised those contentions for the first time in apostsummations mistrial motion (seePeople v Romero, 7 NY3d 911, 912 [2006]). In any event, we conclude that "theprosecutor's isolated remarks were not so egregious as to deprive defendant of a fair trial. . . , particularly considering that this was a bench trial" (People v King, 111 AD3d 1345,1346 [2013], lv denied 23 NY3d 1022 [2014]).
The sentence is not unduly harsh or severe. Present—Smith, J.P., Peradotto,DeJoseph, NeMoyer and Scudder, JJ.