| People v Lang |
| 2018 NY Slip Op 05639 [164 AD3d 963] |
| August 2, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v David R. Lang, Appellant. |
Tendy Law Office, New York City (Matthew S. Hellman admitted pro hac vice), forappellant.
Kristy L. Sprague, District Attorney, Elizabethtown (James E. Martineau of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Essex County (Meyer, J.), renderedNovember 13, 2015, upon a verdict convicting defendant of the crimes of murder in the seconddegree and criminal possession of a weapon in the fourth degree.
In June 2012, defendant fatally shot his brother (hereinafter the victim) outside of thefarmhouse that they shared in the Town of Crown Point, Essex County. In June 2013, defendantpleaded guilty to manslaughter in the first degree. In April 2015, this Court reversed thejudgment of conviction and vacated the plea after determining that the plea was coerced (127AD3d 1253 [2015]). On remittal, following a trial held over nine days, defendant was convictedof murder in the second degree and criminal possession of a weapon in the fourth degree andsentenced to an aggregate prison term of 17 years to life. Defendant now appeals.
Initially, we find that County Court correctly denied defendant's motion to suppress thestatements that he made to the police. "As a general rule, a person who is in custody cannot bequestioned without first receiving Miranda warnings" (People v Doll, 21 NY3d 665, 670[2013] [citation omitted], cert denied 572 US &mdash, 134 S Ct 1552 [2014]; see People v Henry, 114 AD3d1025, 1026 [2014], lv dismissed 22 NY3d 1199 [2014]). Because "the Constitutionis not a barrier to a police officer seeking to help someone in immediate danger," an exception tothis [*2]rule exists where an officer's questions are "anobjectively reasonable response to an apparently exigent situation" (People v Doll, 21NY3d at 670). To establish this emergency exception, "(1) the police must have reasonablegrounds to believe that there is an emergency at hand and an immediate need for their assistancefor the protection of life or property and this belief must be grounded in empirical facts; (2) the[questioning] must not be primarily motivated by an intent to arrest . . . ; and (3)there must be some reasonable basis, approximating probable cause, to associate the emergencywith the [questions]" (id. at 670-671). If an "improper, unwarned statement gives rise to asubsequent Mirandized statement as part of a single continuous chain of events, there isinadequate assurance that the Miranda warnings were effective in protecting a defendant'srights, and the warned statement must also be suppressed" (People v Paulman, 5 NY3d 122, 130 [2005] [internal quotationmarks and citation omitted]; accordPeople v Neal, 60 AD3d 1158, 1159 [2009], lv denied 12 NY3d 857[2009]).
At the suppression hearing, Christopher Bogart, a State Trooper, testified that he went todefendant's house in response to a domestic disturbance 911 call. While en route, a dispatcheradvised that defendant had reported that he shot his brother, that he was inside the house and thathe had left a gun on the porch. Jason Peters, another State Trooper, testified that he arrived atdefendant's house at the same time in a separate car. Both Bogart and Peters left their policevehicles in the road rather than drive them onto the property. Bogart approached the house first,with his gun drawn, and Peters followed and took cover behind a tree on defendant's lawn. Peterstestified that when defendant came out of the house, he could tell that he did not have anything inhis hands. Bogart recalled that as he approached defendant, he could see the victim lying in thenearby driveway. Bogart placed handcuffs on defendant and told him he was under arrest. Petersasked defendant where the victim was and defendant told him that he was in the driveway. Petersran to check on the victim, discovered that he was still alive, called emergency medical servicesand went to move his police vehicle out of the road and onto the property. Peters returned todefendant and Bogart and held defendant—who had begun to complain about the pain inhis knees—as Bogart went to move his police vehicle closer to defendant's house so thatdefendant would have a place to sit. Peters asked where the gun was and defendant told him itwas on the porch. Without moving from where he was standing outside of the house, Peterslooked and could see the gun on top of a refrigerator, the barrel pointed towards them. BothPeters and Bogart recalled that defendant and the victim's other brother drove onto the propertybefore the gun was secured, and Peters yelled at him to leave as he was going onto the porch toget the gun off the refrigerator. Once the gun was secured, Bogart placed defendant into hisnearby police car and read him his Miranda rights.
Based on this testimony, there were two questions asked while defendant was in custody andprior to being read his Miranda rights. Although defendant characterizes the scene asrelatively calm and deliberate, in context, we cannot agree. The two officers arrived atdefendant's remote farm knowing that defendant shot his brother and that there were a number offamily members living nearby—indeed, within minutes of their arrival, one sibling arrivedand had to be directed to leave. Neither officer knew whether anyone else was in the house or onthe property, nor whether defendant had access to more than one gun. The questions that Petersasked were not intended to obtain evidence but to try to quickly help the victim and to secure thearea so emergency medical services could do their work. In our view, Peters had reasonableground to believe that there was an "emergency at hand" (People v Doll, 21 NY3d at670-671), and these concerns permitted Peters to pose the limited questions prior to advisingdefendant of his Miranda rights (see People v Dawson, 149 AD3d 1569, 1571 [2017], lvdenied 29 NY3d 1125 [2017]). Because this questioning was permitted, we reject defendant'sclaim that it [*3]was necessary to suppress the later statementsmade following Bogart's administration of a Miranda warning (see People vPaulman, 5 NY3d at 130; People v Neal, 60 AD3d at 1159).
Defendant also contends that his conviction for murder in the second degree is against theweight of the evidence. If an acquittal is not unreasonable, "our weight of the evidence reviewrequires us to view the evidence in a neutral light and weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony" (People v Peterkin,159 AD3d 1196, 1197 [2018] [internal quotation marks and citations omitted]; seePeople v Bleakley, 69 NY2d 490, 495 [1987]; People v Criss, 151 AD3d 1275, 1276-1277 [2017], lvdenied 30 NY3d 979 [2017]). A person is guilty of murder in the second degree when,"[w]ith intent to cause the death of another person," he or she causes the death of another person(Penal Law § 125.25 [1]; see People v Ryder, 146 AD3d 1022, 1024 [2017], lvdenied 29 NY3d 1086 [2017]). The element of intent is established where a person's"conscious objective is to cause such result" (Penal Law § 15.05 [1]). Evidence ofintoxication may be presented to negate the element of intent (see Penal Law§ 15.25; People vMould, 143 AD3d 1186, 1187 [2016], lv denied 28 NY3d 1187 [2017]).
At trial, Bogart and Peters testified that at approximately 3:00 p.m. on the day in question,they went separately to defendant's farm following defendant's 911 call reporting that he had shotthe victim. As Bogart approached the house, he observed the victim lying in the driveway. Aftercomplying with the troopers' orders to come out of the house, defendant was promptlyhandcuffed. Peters seized a .22-caliber magnum that defendant identified as the rifle that he usedto shoot the victim. Once placed in Bogart's car, defendant waived his Miranda rightsand, in response to Bogart's questions, said that he meant to kill the victim, that it was not anaccident and that "Yes, hell, yes, [he] wanted the [victim] dead."
Peter DeForest, the People's crime scene expert, testified that based on his review of theevidence, including his inspection of a hole in the hat found near the victim's body, the gunshotwound in the victim's head was consistent with a .22-caliber bullet that was stable in flight, i.e.,not deflected off another object prior to striking the victim. Allan Wright, a forensic officer,testified that when he investigated the crime scene, he photographed a broken lilac branch in thevicinity of defendant's house and driveway and determined that the branch was broken and notstruck by a bullet. DeForest similarly testified that the branch was a "greenstick fracture." Incontrast, defendant's forensic expert testified that his review of the hat and gunshot wound ledhim to conclude that the bullet did pass through an intermediate object, and defendant's crimescene expert opined that the lilac branch was struck by a bullet and that he had never heard theterm "greenstick fracture" in the context of a tree branch.
The jury heard the recording of the 911 call that defendant made at approximately 2:45 p.m.Notably, when the dispatcher asked defendant if he had been drinking, defendant responded, "Ofcourse I've been drinking. I drink every [expletive] day." Both Peters and Bogart testified thatthey could smell alcohol on defendant's breath but that he was calm and that his speech wasclear. Further, though defendant complained of pain in his knees, Bogart recalled that heappeared to be steady on his feet and able to walk. When the police sent defendant for a bloodtest at approximately 9:00 p.m., nearly six hours after he was taken into custody, his bloodalcohol content (hereinafter BAC) was .18%. Defendant presented testimony by Sherry Kacinko,a toxicologist, who opined that if defendant's blood had been tested at 3:00 p.m., his BAC wouldhave been between .27% and .36%. Kacinko conceded, however, that this calculation wasdependent upon many unknown factors, including when defendant last consumedalcohol.
[*4] In our view, an acquittal would nothave been unreasonable, inasmuch as the jury could have determined that defendant was toointoxicated to intend to kill the victim and that the victim was instead accidentally struck by adeflected bullet. Undoubtedly, whether a defendant is too intoxicated to form the intent tocommit a crime is an issue for the jury (see People v King, 124 AD3d 1064, 1065 [2015], lv denied25 NY3d 1073 [2015]; People vKenyon, 108 AD3d 933, 939 [2013], lv denied 21 NY3d 1075 [2013];People v Keller, 246 AD2d 828, 828-829 [1998], lv denied 91 NY2d 1009[1998]). Here, although the evidence demonstrated that defendant was drinking on the day that heshot the victim, it also demonstrated that he admitted that he acted purposefully after anargument with the victim. Upon our review of the record, we are unable to conclude that thejury's verdict was against the weight of the evidence (see People v Mould, 143 AD3d at1187; People v King, 124 AD3d at 1066; People v Kenyon, 108 AD3d at939).
Next, defendant contends that County Court should have given a curative instruction becausethe police failed to preserve the lilac branch and obtain defendant's BAC earlier. According todefendant, if the lilac branch had been preserved, it could have been examined by his expert todetermine whether it had deflected a bullet, and, if his BAC had been taken earlier, it would haveshown that he was too intoxicated to form the requisite intent for murder in the second degree.We discern no error. The investigators took multiple photographs of the branch but never tookpossession of it, so it remained on defendant's property. While the police undoubtedly had a dutyto preserve evidence in its possession, there was no affirmative duty to gather evidence fordefendant (see People v Hayes, 17NY3d 46, 51 [2011], cert denied 565 US 1095 [2011]). As for defendant's BAC, hiscounsel requested at 4:42 p.m. that defendant's blood be drawn for testing, but the blood workwas not done until approximately 9:00 p.m. Where, as here, evidence of defendant's intoxicationwas "unnecessary to their prosecution," the police were not required to acquire "potentially usefulevidence" for defendant (People v Winchell, 250 AD2d 942, 943 [1998], lvdenied 92 NY2d 931 [1998]).
Defendant next argues that he was deprived of a fair trial because County Court discharged ajuror without first conducting a reasonably thorough inquiry and an opportunity to be heard.Generally, the trial court may discharge a juror and replace him or her with an alternate where heor she is "unable to continue serving by reason of illness or other incapacity, or for any otherreason" after conducting a "reasonably thorough inquiry concerning such illness, incapacity orunavailability" (CPL 270.35 [1], [2] [a]). Upon the court's determination that "there is noreasonable likelihood [that the] juror will be appearing" within two hours of the time that the trialwas scheduled to resume, the court may presume that the juror is unavailable (CPL 270.35 [2][a]). The court must give the parties an opportunity to be heard prior to discharging a juror(see CPL 270.35 [2] [b]).
The record indicates that after bringing the jury in to begin the day's testimony, County Courtadvised that one juror would not be able to "finish the trial today" due to "an incredibly importantappointment for a family member." The court continued, "we're sorry she couldn't finish the trial,so we'll have to use [an alternate] to finish the trial. We'll discuss this later. All right? And if youhave some objections . . . anything else?" Defendant did not raise any objection inresponse. Later, during a break in the testimony and outside of the jury's presence, the courtasked defense counsel whether he had a "problem" with this, noting that "when [the court]mentioned that [it was] going to replace [the juror] with [an alternate], you seemed to, at leastbody language-wise, have some reticence about that." Defense counsel thereafter questioned thelimited "opportunity to be heard about this," to which the court responded, "If you want to beheard, go ahead." After some further discussion confirmed, among other things, that [*5]the juror had advised one day earlier that she would be out of townfor a medical appointment for her child at a provider located five hours away, the court denieddefense counsel's request to adjourn the trial for one day and ordered the juror's replacement bythe alternate juror.
In context, we find that County Court engaged in the requisite reasonably thorough inquiryprior to determining that the juror would not be returning within two hours (see People vJeanty, 94 NY2d 507, 516 [2000]) and that defendant had an opportunity to be heard prior todischarging the juror based on her unavailability. As the court noted, counsel selected both thejuror and the alternate juror. Although defendant had a constitutional right to a trial by a"particular jury chosen according to the law, in whose selection [he] . . . had avoice[,] . . . replacement with an alternate juror is not, as a rule, a violation of theright to trial by jury . . . [and] there is no material distinction between regular andalternate jurors" (id. at 517 [internal quotation marks and citations omitted]).Accordingly, we discern no error in the court's determination to replace the juror with analternate juror.
Finally, defendant contends that the prosecutor's comments during summation deprived himof a fair trial. "Reversal based on prosecutorial misconduct during summation is warranted onlyif the misconduct is such that the defendant suffered substantial prejudice, resulting in a denial ofdue process" (People v Wynn, 149AD3d 1252, 1255 [2017] [internal quotation marks and citations omitted], lv denied29 NY3d 1136 [2017]). Whether a defendant has been deprived of a fair trial "hinges upon theseverity and frequency of the conduct, whether the trial court took appropriate action to dilute theeffect of the conduct and whether, from a review of the evidence, it can be said that the resultwould have been the same absent such conduct" (id. [internal quotation marks andcitations omitted]).
As defendant points out, during summation the prosecutor frequently prefaced conclusionswith "I think" or "I don't believe." When defense counsel objected to such commentary, CountyCourt overruled, explaining that the prosecutor is "entitled to make an argument . . .of the inferences and conclusions he believes reasonably and logically flow from the facts." Thisobjection and response occurred two more times, after which defense counsel registered his"continuing objection to [the prosecutor's] opinion and inserting his own opinions into this case."The court responded that the prosecutor is "entitled to state what he thinks the evidence shows"and that "[s]o long as he stays away from [vouching for a witness's credibility], he can state whatthe evidence shows in his opinion."
Although defendant now contends that the prosecutor did, in fact, thereafter vouch forwitnesses' credibility "repeatedly," defense counsel did not object to any such instance during thetrial. Accordingly, we find that his claim that such statements deprived him of a fair trial are notpreserved for review (see People v Wynn, 149 AD3d at 1256). If we were to considerdefendant's claims, we would find that the prosecutor either did not vouch for any witness'scredibility or that this was proper commentary offered in response to defendant's argument duringsummation (see People v Jackson,160 AD3d 1125, 1129 [2018]; People v Heiserman, 127 AD3d 1422, 1424 [2015]). Similarly,although defendant preserved his argument with regard to the prosecutor offering his opinionduring summation, we discern no error. The prosecutor's summation was responsive todefendant's arguments during summation. Further, County Court reminded the jury during itsinstructions that "the summations . . . are not evidence . . . only eachlawyer's view of the facts, inferences and conclusions that they contend may properly be drawnfrom the evidence. Whatever the lawyers said and however they said it, you should rememberthat what the lawyers said is simply argument submitted for your consideration." In context,[*6]notwithstanding the prosecutor's stylistic choice to usepersonal pronouns (see People v Franklin, 288 AD2d 751, 755 [2001], lv denied97 NY2d 728 [2002]), we find that the People's summation was a fair commentary on defendant'ssummation, and that the cumulative effect of the challenged comments was not "so prejudicial asto deny defendant his fundamental right to a fair trial" (People v Thomas, 155 AD3d 1120, 1124 [2017], lv denied31 NY3d 1018 [2018]; see People v Franklin, 288 AD2d at 755).
McCarthy, J.P., Egan Jr., Devine and Aarons, JJ., concur. Ordered that the judgment isaffirmed.