| People v Boyd |
| 2018 NY Slip Op 01714 [159 AD3d 1358] |
| March 16, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v DarrellBoyd, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Janet Somes of counsel), fordefendant-appellant.
Darrell Boyd, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), renderedMay 14, 2014. The judgment convicted defendant, upon a jury 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 him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]). The charge arose from anincident in 2007 in which defendant allegedly beat and strangled his former neighbor.Firefighters discovered the victim's body in her smoldering, smoke-filled apartment onMerchants Road in Rochester. An autopsy revealed that she died of asphyxial and blunt forceinjuries to her head and neck shortly before the fire. An ignitable liquid was found to be presenton the victim's clothing and bedding, and fire investigators concluded that someone hadintentionally set fire to her bed. Defendant was questioned by the police during the early stages ofthe investigation and, about 10 days after the murder, defendant told the investigators that he hadbeen watching a Yankees versus Red Sox game on television at his wife's apartment on BrooksAvenue on the night of the victim's death, April 20, 2007. Defendant said that he left theapartment only once that day to go to the corner store before the game started, and surveillancevideo from his wife's apartment building showed defendant leaving the building through the westdoor at about 6:15 p.m. or 6:30 p.m., and returning about 15 or 20 minutes later with a shoppingbag in his hand. The 911 report of the fire at the victim's apartment was placed at 7:43 p.m., anddefendant did not reappear on the surveillance video at any time between 6:50 p.m. and 9:00 p.m.Thus, the surveillance footage appeared to corroborate defendant's alibi.
The investigation went cold until 2012, when a Combined DNA Index System (CODIS)database "hit" linked defendant's DNA profile to DNA material that had been collected fromunder the victim's fingernails on her right hand during her autopsy. Defendant was incarceratedon an unrelated matter at that time, and the investigators obtained a sample of his DNA forcomparison. Further analysis by a forensic biologist at the Monroe County Crime Laboratoryconfirmed not only that defendant could not be excluded as a contributor to the DNA that wasunder the victim's fingernails, but also that "the probability of randomly selecting an unrelatedindividual who could be a contributor to the mixture obtained under the fingernail clippings ofthe right hand of [the victim] was less than 1 in 59.4 million."
Defendant and his wife had lived next door to the victim from 2002 to 2005 in the apartmentbuilding on Merchants Road where the victim died. Defendant, his wife, and the victim wereneighbors and friends until 2005, when the victim witnessed a domestic altercation between thecouple and intervened. The victim called the police, and defendant was arrested and prohibitedfrom having contact with his wife. Defendant was on parole at the time, and the domesticviolence incident was subsequently proved to be a violation of defendant's parole. As aconsequence, defendant was incarcerated for 15 months. At defendant's trial on the murdercharge herein, defendant's ex-wife testified that defendant blamed the victim for his incarcerationafter the 2005 incident. In addition, a jailhouse informant testified that defendant made variousadmissions to him, including that, after defendant returned to Rochester, he went to see a womanin an apartment building where he and his wife used to live, that he had choked the woman aftershe scratched him, and that he "burned up the bed" in an effort to cover up the evidence.
We reject defendant's contention that he was deprived of a fair trial by the cumulative effectof several alleged evidentiary errors made by Supreme Court. First, the court properly exercisedits discretion in admitting testimony that the victim had intervened in a domestic incidentinvolving defendant and his wife in 2005 that resulted in defendant's parole violation andincarceration. That evidence was inextricably interwoven with the material facts of the case andrelevant to demonstrate defendant's motive (see People v Ray, 63 AD3d 1705, 1706 [4th Dept 2009], lvdenied 13 NY3d 838 [2009]), and the court did not abuse its discretion in determining thatthe "probative value [of the evidence admitted] exceed[ed] the potential for prejudice resulting tothe defendant" (People v Alvino, 71 NY2d 233, 242 [1987]; see generally People v Pryor, 48 AD3d1217, 1217-1218 [4th Dept 2008], lv denied 10 NY3d 868 [2008]). The courtminimized the potential for prejudice to defendant by prohibiting the People from elicitingtestimony that defendant hit and choked his wife during the domestic incident, by precludingtestimony concerning the nature of the underlying crime for which defendant was on parole, andby giving prompt limiting instructions to the jury (see People v Harris, 147 AD3d 1328, 1330 [4th Dept 2017]).
Second, the court properly exercised its discretion in admitting evidence that, in 2007,defendant exited his wife's apartment through a window to avoid a parole officer. Contrary todefendant's contention, no other logical conclusion can reasonably be drawn from the facts, andthe evidence is relevant and probative of a material issue in the case, i.e., defendant's manner ofingress and egress at his wife's apartment. Surveillance video from the night of the murderappears to corroborate defendant's alibi that he was inside his wife's apartment on BrooksAvenue. A jailhouse informant testified, however, that defendant told him that he snuck in andout of his wife's apartment through her front and back windows, and that he avoided the securitycameras by passing through two "blind spots" that he had identified. The informant furthertestified that defendant told him that he went into his wife's apartment in the view of the securitycameras before he committed the crime, and then he left the apartment through a blind spot andcommitted the crime. Under the circumstances presented here, we conclude that the court did notabuse its discretion in admitting the above evidence (see generally People v Barnes, 109AD2d 179, 183-186 [4th Dept 1985]).
Third, the court did not abuse its discretion in admitting, with a prompt limiting instruction,testimony from the victim's granddaughter that, shortly before the victim's death, the victim toldher granddaughter that defendant had stopped by her apartment and that she was afraid that hewould return. Inasmuch as evidence introduced prior to the admission of that testimonyestablished that defendant was aware of the victim's unwelcoming state of mind toward him, andbecause the victim's statements did not refer to any threats or bad acts by defendant (cf. People v Meadow, 140 AD3d1596, 1598-1599 [4th Dept 2016], lv denied 28 NY3d 933 [2016]), we conclude thatthe testimony of the victim's granddaughter was properly admitted under the state of mindexception to the hearsay rule (see Peoplev Wlasiuk, 32 AD3d 674, 679 [3d Dept 2006], lv dismissed 7 NY3d 871 [2006];see also People v Kimes, 37 AD3d1, 17-18 [1st Dept 2006], lv denied 8 NY3d 881 [2007], deniedreconsideration 9 NY3d 846 [2007]). Defendant's ex-wife testified that, after the domesticincident in 2005, the victim "disliked" defendant, and defendant "blamed the victim foreverything." Although she did not know defendant to have a friendship with the victim in 2007,defendant's ex-wife testified that defendant stopped by the victim's apartment twice during themonth preceding the victim's death. Defendant said he "was going down to the old apartmentbuilding" to "say hi to [the victim]" in March 2007. Shortly thereafter, defendant and his wifevisited the victim at her apartment and invited her to join them for lunch. Defendant's ex-wifetestified that, upon seeing defendant, the victim said she could not go and shut the door. Theevidence demonstrated that defendant knew that he had not reestablished a positive relationshipwith the victim after the domestic incident in 2005, and he was aware of the victim'sunwelcoming state of mind toward him. Contrary to the defense theory that defendant and thevictim had an amicable and even sexual relationship prior to the victim's death, the evidenceestablished that defendant was aware that the victim did not want him to visit her apartment.
In addition, we conclude that the court minimized the potential for prejudice to defendant byinstructing the jury that the victim's statements to her granddaughter were not to be consideredfor their truth, but only as proof of the victim's general state of mind of not wanting defendant tovisit her, regardless of whether he actually visited or intended to do so (see People vReynoso, 73 NY2d 816, 819 [1988]). In any event, inasmuch as there is overwhelming proofof defendant's guilt and there is no significant probability that defendant otherwise would havebeen acquitted, we further conclude that any error in admitting the testimony of the victim'sgranddaughter's is harmless (see Peoplev Williams, 25 NY3d 185, 194 [2015]; People v Smith, 289 AD2d 960, 961 [4thDept 2001], lv denied 97 NY2d 761 [2002]; see generally People v Crimmins, 36NY2d 230, 241-242 [1975]).
Fourth, the court did not abuse its discretion in admitting in evidence a portion of a telephonecall recorded in jail. During the call, defendant described a distinctive and unique modusoperandi that was sufficiently similar to the manner in which the instant crime was committed.On the recording, defendant discussed evading surveillance cameras and using fire as a weapon,and such discussion is probative of his identity as the perpetrator (see People v Frederick, 152 AD3d1242, 1242-1243 [4th Dept 2017]). The portion of the telephone call played to the jury ismore probative than prejudicial (seePeople v Matthews, 142 AD3d 1354, 1355 [4th Dept 2016], lv denied 28 NY3d1125 [2016]), and " 'the court's limiting instruction minimized any prejudice todefendant' " (Frederick, 152 AD3d at 1243).
Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's further contention that the verdict is against theweight of the evidence (see People vJackson, 66 AD3d 1415, 1416 [4th Dept 2009]; see generally People v Bleakley,69 NY2d 490, 495 [1987]). We note that issues of credibility and the weight to be accorded tothe evidence are primarily for the jury's determination (see People v Witherspoon, 66 AD3d 1456, 1457 [4th Dept 2009],lv denied 13 NY3d 942 [2010]), and we see no basis for disturbing the jury'sdeterminations in this case.
We reject defendant's further contention that the court erred in refusing to suppress hisstatements to the police and his DNA sample on the ground that he was unlawfully subjected tocustodial interrogation while incarcerated on an unrelated matter. Contrary to defendant'scontention, the recording of the investigators' interview with defendant at the prison supports thecourt's determination that the meeting was brief and nonaccusatory in nature. Defendant met withthe investigators in a large, open room, and agreed to speak with them about the "cold case."There were no threats or promises made by the investigators to induce or coerce defendant, anddefendant voluntarily agreed to provide a sample of his DNA to the investigators upon theirrequest. There was no "added constraint" that would have led defendant to believe that someother restriction had been placed on him "over and above that of ordinary confinement in acorrectional facility" (People vJackson, 141 AD3d 1095, 1096 [4th Dept 2016], lv denied 28 NY3d 1146[2017] [internal quotation marks omitted]; see generally People v Alls, 83 NY2d 94, 100[1993], cert denied 511 US 1090 [1994]).
We further conclude that the court did not err in denying defendant's request for anunredacted copy of a police incident report. The court conducted an in camera review of thereport and determined that disclosure to defendant of the information that had been redacted fromdefendant's copy was unwarranted because the information was not relevant to the case (seegenerally CPL 240.20 [1]; Matter of Brown v Grosso, 285 AD2d 642, 644 [2d Dept2001], lv denied 97 NY2d 605 [2001]).
Defendant contends in his pro se supplemental brief that he was deprived of effectiveassistance of counsel because his attorney failed to object to the prosecutor's characterization ofthe DNA evidence during summation. In particular, defendant contends that the prosecutorerroneously stated on summation that the DNA found under the victim's fingernails was in factdefendant's, in contrast to the testimony of the forensic biologist, who testified only thatdefendant could not be excluded as a source of the DNA. Given the forensic biologist's testimonyconcerning the extremely high odds of randomly selecting an unrelated individual who could be acontributor to the mixture found under the victim's fingernail clippings, we conclude that theprosecutor's statements on summation were "fair comment on the evidence" (People v Speaks, 28 NY3d 990,992 [2016]). Even assuming, arguendo, that the prosecutor's comments on the DNA evidencefound under the victim's fingernails could be considered a mischaracterization of the forensicbiologist's testimony, we conclude that defense counsel's failure to object did not amount toineffective assistance of counsel (seePeople v Smith, 150 AD3d 1664, 1667 [4th Dept 2017]; see also People v Ramsaran, 29 NY3d1070, 1071 [2017]). Defendant's own testimony that he had been "having sex" with thevictim as often as three times per week, and as recently as two days prior to her death, raised thereasonable possibility that his DNA might have been found on the victim (see People v Wright, 25 NY3d769, 783 [2015]; cf. People vJones, 134 AD3d 1588, 1589 [4th Dept 2015]). Thus, we reject defendant's implicitassertion underlying his ineffective assistance contention that he was somehow misidentified asthe perpetrator by the use of the DNA evidence. Viewing the evidence, the law and thecircumstances of this case in totality and as of the time of the representation, we conclude thatdefendant received meaningful representation (see generally People v Baldi, 54 NY2d137, 147 [1981]).
The remaining contentions in defendant's main and pro se supplemental briefs are eitherbased on matters outside the record and are appropriately raised by way of a CPL 440.10 motion(see People v DeJesus, 110 AD3d1480, 1482 [4th Dept 2013], lv denied 22 NY3d 1155 [2014]), or are unpreservedfor our review (see People v Jackson, 236 AD2d 628, 629 [2d Dept 1997], lv denied90 NY2d 859 [1997]), and we decline to exercise our power to review any such unpreservedcontentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).Present—Centra, J.P., Peradotto, NeMoyer, Troutman and Winslow, JJ.