| People v Wisdom |
| 2018 NY Slip Op 05950 [164 AD3d 928] |
| August 29, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Atara Wisdom, Appellant. |
Paul Skip Laisure, New York, NY (Tammy E. Linn of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Thomas M. Ross ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (AlbertTomei, J.), rendered October 8, 2014, convicting her of murder in the second degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, ofthat branch of the defendant's omnibus motion which was to suppress a statement made by her tolaw enforcement officials.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to disprove thedefendant's justification defense beyond a reasonable doubt and to establish the defendant's guiltof murder in the second degree beyond a reasonable doubt (see Penal Law§§ 35.15 [2] [b]; 125.25 [1]). Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence, we nevertheless accord greatdeference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guiltwas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
We agree with the Supreme Court's determination to deny suppression of an oral statementthe defendant made to police on the morning of July 26, 2012. After waiving her Mirandarights (see Miranda v Arizona, 384 US 436 [1966]), the defendant freely and voluntarilymade a videotaped statement at the police station on July 25, 2012, beginning at approximately9:00 p.m. The interview ended after approximately 30 minutes, not because the defendantunequivocally invoked her right to remain silent, but rather, to allow her to compose herself. Theidea for ending the interview and stopping the videotape was that of the Assistant DistrictAttorney (hereinafter ADA) conducting the interview. The ADA said, "Let's stop the tape fornow," and "there will be no further questions until we resume the tape." Questioning resumed thefollowing morning at approximately 10:00 a.m., at which time the defendant was reminded of therights she had been read the previous day, and the defendant agreed to continue answering morequestions. During that session, the defendant stated that after she stabbed the victim, she took thevictim's cell phone, keys, and wallet. The wallet contained the victim's welfare benefit card, butthe defendant specifically denied ever using the card.
The defendant's morning statement was properly admitted at trial. Had the defendant [*2]unequivocally and unqualifiedly invoked her right to remain silentthe previous evening, the request would have had to be scrupulously honored (see id. at479; People v Ferro, 63 NY2d 316, 322 [1984]), and further interrogation would havehad to cease (see People v Gary, 31 NY2d 68, 70 [1972]). Under such circumstances,further inquiry can be made, but only if a significant period of time has passed and the policereiterate the requisite warnings (see Michigan v Mosley, 423 US 96, 103-104 [1975];People v Brown, 266 AD2d 838 [1999]). However, since the defendant in this case hadnot unequivocally and unqualifiedly invoked her right to remain silent (see People v Horton, 46 AD3d1225, 1226 [2007]; People vCaruso, 34 AD3d 860, 862 [2006]; cf. People v Legere, 81 AD3d 746, 749 [2011]) and remained incontinuous custody in the interim, police and prosecutors were free to resume their questioningof the defendant within a reasonable time, and to do so without repeating the Mirandawarnings (see People v Legere, 81 AD3d at 748; People v Santalis, 302 AD2d614 [2003]; People v Holland, 268 AD2d 536, 537 [2000]; People v Baker, 208AD2d 758 [1994]; People v Glinsman, 107 AD2d 710 [1985]). The further questioning atissue here was within a reasonable time under this Court's precedent (see People vHolland, 268 AD2d at 536; People v Thomas, 233 AD2d 347 [1996]; People vBaker, 208 AD2d at 758). The suppression hearing testimony of a detective who, in responseto questions by defense counsel that the defendant did not want to talk anymore during the priorevening's videotaped interview, answered, "Right," and in another instance said, "Correct," doesnot require a different result. This testimony does not change the fact that there was nounequivocal invocation of the defendant's right to remain silent at that time. The suggestion thatthe detective's answers refer instead to an unrecorded communication by the defendant, despitethe colloquy on the videotape that there would be no further questioning until the tape isresumed, is mere speculation and conjecture that reads into the record information that simply isnot present, and provides no basis for concluding that the defendant's 10:00 a.m. statementshould have been suppressed.
We agree with the Supreme Court's determination to admit evidence of a prior unchargedcrime involving the defendant's theft and use of certain property that belonged to the victim, as itcompleted the narrative and provided circumstantial evidence of the date of the victim's death (see People v Morris, 21 NY3d588, 594 [2013]; People vConroy, 102 AD3d 979, 980 [2013]). The probative value of the evidence outweighedits prejudicial effect (see People v Till, 87 NY2d 835, 836 [1995]), and the court'slimiting instruction was sufficient to avert any potential prejudice (see People v Jackson,178 AD2d 438, 439 [1991]; People v Economy, 156 AD2d 459, 460 [1989]).
The defendant's contention that she was deprived of a fair trial by the admission intoevidence of a recording of the victim's 911 call is unpreserved for appellate review (seeCPL 470.05 [2]) and, in any event, without merit. We agree with the Supreme Court'sdetermination to admit the recording under the present sense impression exception to the hearsayrule (see People v Cantave, 21NY3d 374, 382 [2013]; People v Vasquez, 88 NY2d 561, 575 [1996]; People vBrown, 80 NY2d 729, 732 [1993]).
The defendant's contention that certain comments made by the prosecutor during summationdeprived her of a fair trial is partially unpreserved for appellate review (see CPL 470.05[2]). In any event, to the extent that the prosecutor exceeded the bounds of permissible rhetoricalcomment or made other improper remarks during summation, the remarks were not so egregiousas to have deprived the defendant of a fair trial, and any other error in this regard was harmless(see People v Crimmins, 36 NY2d 230, 238, 241-242 [1975]; People v Adamo,309 AD2d 808, 809 [2003]).
We agree with the defendant that it was improper for the Supreme Court to condition herability to interview a prosecution witness upon the interview occurring either in the presence ofthe prosecutor or a detective (see e.g. People v Eanes, 43 AD2d 744 [1973]). However,the error was harmless (see People v Crimmins, 36 NY2d 230 [1975]).
The defendant's remaining contention is without merit. Dillon, J.P., LaSalle, Barros andChristopher, JJ., concur.