People v Bethea

2018 NY Slip Op 01474 [159 AD3d 710]

March 7, 2018

Appellate Division, Second Department

As corrected through Wednesday, May 2, 2018

[*1]

The People of the State of New York,Respondent, v Rodney Bethea, Appellant.

Gary E. Eisenberg, New City, NY, for appellant, and appellant pro se.

David M. Hoovler, District Attorney, Middletown, NY (Nicholas D. Mangold of counsel),for respondent.

Appeal by the defendant from a judgment of the County Court, Orange County (Jeffrey G.Berry, J.), rendered June 29, 2011, convicting him of manslaughter in the first degree andcriminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.The appeal brings up for review the denial, after a hearing, of those branches of the defendant'somnibus motion which were to suppress physical evidence and his statement to law enforcementofficials.

Ordered that the judgment is affirmed.

Contrary to the defendant's contention, the record of the pre-trial Huntley hearing(see People v Huntley, 15 NY2d 72 [1965]) shows that at the outset of a custodialinterview by the police, the defendant made an intelligent, knowing, and voluntary waiver of hisMiranda rights (see Miranda v Arizona, 384 US 436 [1966]), and that hisstatement to the police was not the product of coercion (see People v Mateo, 2 NY3d383, 413-414 [2004]; People vBooker, 49 AD3d 658, 658 [2008]; People v Sepulveda, 40 AD3d 1014, 1014 [2007]).

The County Court erred in declining to suppress the statement elicited from the defendantafter he unequivocally invoked the right to counsel, as well as evidence from a buccal swab thatwas taken after the defendant invoked his right to counsel. A suspect in custody whounequivocally requests the assistance of counsel may not be questioned further in the absence ofan attorney (see People v Grice, 100 NY2d 318, 320-321 [2003]; People vGlover, 87 NY2d 838, 839 [1995]; People v West, 81 NY2d 370, 373-374 [1993];People v Cunningham, 49 NY2d 203, 209 [1980]). "A defendant's unequivocalinvocation of counsel while in custody results in the attachment of the right to counsel, indeliblyso, meaning that, as a matter of state constitutional law, a defendant cannot subsequently waivethe right to counsel unless the defendant is in the presence of an attorney representing thatdefendant" (People v Harris, 93AD3d 58, 66 [2012]; see People v Grice, 100 NY2d at 320-321; People vCunningham, 49 NY2d at 205). Further, an " 'alleged deprivation of theconstitutional right to counsel may be raised on appeal, irrespective of whether such claim hasbeen preserved for appellate review' " (People v Mateo, 148 AD3d 727, 729 [2017], quoting People vFlournoy, 303 AD2d 762, 762 [2003]; see People v Kinchen, 60 NY2d 772, 773[1983]; People v Samuels, 49 NY2d 218, 221 [1980]).

Here, a recording of the defendant's custodial statement to the police, which was [*2]entered into evidence at the hearing, shows that during theinterview the defendant twice stated, "I think I need a lawyer." The defendant's statementsconstituted an unequivocal invocation of the right to counsel, and after those statements, thepolice continued their questioning of the defendant and took no steps to comply with thedefendant's unequivocal request for counsel. Therefore, the remainder of the defendant'sstatement after that point, as well as the buccal swab that he provided to the police after thatpoint, should have been suppressed from evidence (see People v Porter, 9 NY3d 966, 967 [2007]; People vEsposito, 68 NY2d 961, 962 [1986]; People v Harris, 93 AD3d at 69-70; People v Wood, 40 AD3d 663,664 [2007]). However, this error was harmless, as the evidence of guilt without reference to thestatement and buccal swab was overwhelming, and there is no reasonable possibility that theerror contributed to the conviction (seePeople v Paulman, 5 NY3d 122, 134 [2005]; People v Zalevsky, 82 AD3d 1136, 1138 [2011]).

The defendant's challenge to the jury charge regarding his statement to the police isunpreserved for appellate review (see CPL 470.05 [2]). In any event, any error in thecourt's instruction was harmless (see People v Crimmins, 36 NY2d 230, 241-242[1975]).

The defendant failed to preserve for appellate review his contention that the County Courtshould have submitted to the jury the count of manslaughter in the second degree (seeCPL 470.05 [2]; People v Nunez,120 AD3d 714, 716 [2014]). In any event, the court properly declined to charge the jury as tothis count, as there was no reasonable view of the evidence that the defendant acted withanything less than intent to seriously injure or kill the victim (see People v Alvaradoajcuc, 142 AD3d 1094, 1095 [2016]; People v Delgado, 116 AD3d 541[2014]; People v James, 284 AD2d 549 [2001]).

The defendant failed to preserve for appellate review his challenge to the prosecutor'ssummation remarks (see CPL 470.05 [2]; People v Bell, 136 AD3d 838, 839 [2016]). Certain remarks by theprosecutor denigrated the defense and were inflammatory, including her comment that thedefendant "had plenty of time to concoct a story," and the comment that the defendant had failedto pray for the victim. In addition, the prosecutor's comment that a witness had wiped off abaseball bat was not based on the trial evidence. Nonetheless, these errors were harmless, asthere was overwhelming evidence of guilt, and no significant probability that any error in thisregard might have contributed to the conviction (see People v Crimmins, 36 NY2d at241-242; People v Brown, 139AD3d 964, 966 [2016]). Further, the improper summation remarks were not egregious orpervasive enough to have deprived the defendant of a fair trial (see People v Nanand, 137 AD3d945, 947-948 [2016]; People vRoscher, 114 AD3d 812, 813 [2014]). Moreover, the cumulative effect of the errors didnot deny the defendant a fair trial (see People v Crimmins, 36 NY2d at 237-238).

Contrary to the defendant's contentions, raised in his main brief and his pro se supplementalbrief, a review of the record shows that the defendant was afforded the effective assistance ofcounsel (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54NY2d 137, 147 [1981]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).

In his pro se supplemental brief, the defendant raises several additional contentions. Thedefendant's contentions regarding voir dire are unpreserved for appellate review (see CPL470.05 [2]; see also People v Vasquez, 89 NY2d 521, 534 [1997]). In any event, the"scope of a party's examination of prospective jurors is within the discretion of the trial court"(People v Miller, 28 NY3d 355,358 [2016]). Here, the County Court providently exercised its discretion in permitting theprosecutor to make the challenged remarks during the examination of the prospective jurors(see CPL 270.15 [1] [c]; People v Evans, 242 AD2d 948, 949 [1997]). Thedefendant's contention that the court made improper comments to the venire panel is withoutmerit. Although the transcript attributes certain challenged comments to the court, our review ofthe transcript indicates that those comments were made by the prosecutor. Moreover, the courthad discretion to allow those remarks (see id. at 949).

The defendant failed to preserve for appellant review his contention that the County Courterred in failing to ask a seated juror whether she was qualified to continue to serve (seeCPL [*3]470.05 [2]). In any event, the record does notdemonstrate that the subject juror made any statements or engaged in any conduct that wouldindicate that she was "grossly unqualified" to serve on the jury (CPL 270.35 [1]). Consequently,the court was not required to ask that juror whether she was qualified to continue to serve (see People v Delgado, 134 AD3d1046, 1047 [2015]; see also Peoplev Saunders, 83 AD3d 1100 [2011]).

Lastly, the defendant's contention, raised in his pro se supplemental brief, that the CountyCourt should have precluded the testimony of a witness based on the lack of notice pursuant toCPL 710.30 (1) is based on matters dehors the record and, thus, not reviewable on direct appeal.Hinds-Radix, Maltese and Iannacci, JJ., concur.

Hall, J.P., dissents, and votes to reverse the judgment, on the law, grant those branches of thedefendant's omnibus motion which were to suppress physical evidence and so much of hisstatement to law enforcement officials as was made after the defendant invoked his right tocounsel, and order a new trial, with the following memorandum: The defendant and the victimhad a physical altercation while they were both attending a party at a house in Newburgh.According to the People, shortly after the altercation, on the driveway outside of the house, thedefendant repeatedly struck the victim with a baseball bat, causing his death. When the defendantwas interrogated by the police the next day, he admitted that he had punched the victim severaltimes in the face, causing him to fall to the ground. However, it was only after the defendantunequivocally invoked his right to counsel, and after the police improperly continued to questionthe defendant, that the defendant admitted that he struck the victim with a baseball bat. Alsofollowing the defendant's invocation of the right to counsel, the defendant provided a buccalswab to the police. The DNA on the buccal swab was later determined to match the DNA on abaseball bat recovered at the house. Following a suppression hearing, the County Court deniedthose branches of the defendant's omnibus motion which were to suppress the buccal swab andthe statement made by the defendant after his invocation of the right to counsel. After a jury trial,the defendant was convicted of manslaughter in the first degree (for causing the death of thevictim with the intent to cause serious physical injury) and criminal possession of a weapon inthe third degree. The defendant appeals.

I agree with my colleagues in the majority that the County Court erred in failing to suppressthe buccal swab and the statement made by the defendant after his unequivocal invocation of hisright to counsel. Contrary to the conclusion of my colleagues in the majority, however, I believethat these errors cannot be deemed harmless beyond a reasonable doubt. Accordingly, I wouldorder a new trial.

Because the County Court's error in failing to suppress the evidence obtained after thedefendant's invocation of the right to counsel constituted constitutional error, the error cannot bedeemed harmless unless there is no reasonable possibility that the error might have contributed tothe defendant's conviction (see People v Crimmins, 36 NY2d 230, 237 [1975]).

Here, there was only one witness at trial who testified that he saw the defendant strike thevictim with a baseball bat. That witness testified that he had consumed 4 cups of brandy mixedwith soda prior to arriving at the party, and 31/2 cups of vodka between the timethat he arrived at the party and the time of the altercation between the defendant and the victim.The witness testified that he was feeling "a little like pas[t] tipsy" at the time of the altercation.Moreover, the evidence that should have been suppressed—the defendant's admission thathe struck the victim with a baseball bat and the buccal swab that revealed that the defendant hadhandled a baseball bat recovered at the house—was arguably the most damaging evidencethat was presented to the jury. Under the circumstances, I am not satisfied that there is noreasonable possibility that the County Court's error in allowing the admission of this evidencemight have contributed to the conviction (see People v Goldstein, 6 NY3d 119, 129 [2005]; People v Harris, 93 AD3d 58, 74[2012]; People v D'Angelo, 67 AD2d 931 [1979]). Notably, the jury found the defendantguilty of manslaughter in the first degree only after it had reported that it was deadlocked on thatcharge and the trial court delivered an Allen charge (see Allen [*4]v United States, 164 US 492 [1896]).

Accordingly, I vote to reverse and order a new trial.