| People v Trappler |
| 2019 NY Slip Op 04781 [173 AD3d 1334] |
| June 13, 2019 |
| Appellate Division, Third Department |
[*1](June 13, 2019)
| The People of the State of New York,Respondent, v Alice C. Trappler, Appellant. |
Thomas J. Eoannou, Buffalo, for appellant, and appellant pro se.
Joseph G. Fazzary, District Attorney, Watkins Glen, for respondent.
Lynch, J.P. Appeal from a judgment of the County Court of Schuyler County (Morris, J.),rendered July 25, 2013, upon a verdict convicting defendant of the crimes of murder in thesecond degree (two counts), burglary in the first degree, burglary in the second degree andconspiracy in the second degree.
On November 2, 2011, defendant gave birth to a child fathered by her ex-boyfriend, DanielBennett (hereinafter the victim). Defendant was opposed to the victim having any contact withthe child and so confided in her ex-husband, Thomas Borden. On the evening of April 19, 2012,Borden and his stepbrother, Nathan Hand, went to the victim's residence, where Borden enteredthe home and fatally shot the victim using a 12-gauge shotgun. Two days later, while beingpursued by police in Pennsylvania, Borden jumped in front of a commuter train and was killed.After being taken in for questioning, Hand admitted that he was with Borden and aided him inkilling the victim.
In June 2012, defendant was charged in a five-count indictment with two counts of murder inthe second degree, burglary in the first and second degrees and conspiracy in the second degree,all based on a theory of accessorial liability in the shooting of the victim. After a two-week jurytrial, defendant was convicted as charged. County Court denied her motion to set aside theverdict pursuant to CPL 330.30 and ultimately sentenced her to an aggregate prison term of 25years, with five years of postrelease supervision. Defendant appeals.
As defendant failed to challenge the legal sufficiency of the evidence at the close of all theproof, her legal sufficiency claim is not preserved for our review (see People v Lane, 7 NY3d 888,889 [2006]). That said, our weight of the evidence review necessarily includes an evaluation ofwhether all the elements of the charged crimes were proven beyond a reasonable doubt (see People v Danielson, 9 NY3d342, 348-349 [2007]). Accepting that a different result would not have been unreasonable inview of defendant's testimony disavowing any knowledge of Borden's plan to shoot the victim,we weigh the conflicting testimony as to what transpired and independently assess the inferencesto be drawn, giving due deference to the jury's credibility determinations (see People vBleakley, 69 NY2d 490, 495 [1987]).
There is no real dispute here that Borden entered the victim's home and fatally shot him,establishing the fundamental acts underlying the murder and burglary charges (see PenalLaw §§ 125.25 [1], [3]; 140.30 [1]; 140.25 [2]). The pivotal question isdefendant's role in this unprovoked attack. Pertinent in this regard is that a person is guilty ofconspiracy in the second degree when, "with intent that conduct constituting a class A felony beperformed, [he or she] agrees with one or more persons to engage in or cause the performance ofsuch conduct" (Penal Law § 105.15; see People v Nicholas, 118 AD3d 1183, 1185 [2014], lvdenied 24 NY3d 1122 [2015]). As relevant to accessorial liability, "[w]hen one personengages in conduct which constitutes an offense, another person is criminally liable for suchconduct when, acting with the mental culpability required for the commission thereof, he [or she]solicits, requests, commands, importunes, or intentionally aids such person to engage in suchconduct" (Penal Law § 20.00; see People v Williams, 156 AD3d 1224, 1226 [2017], lvdenied 31 NY3d 1018 [2018]; People v Strauss, 155 AD3d 1317, 1318 [2017]).
The record shows that defendant's relationship with the victim lasted from about January2011 into May 2011, and that it was established after the shooting that he was the child'sbiological father. That said, defendant characterized the victim as a "monster" and told numerouswitnesses, including the victim's parents, that she would never allow him to see the child. Sheconfirmed asking three other males to acknowledge paternity, which Borden eventually agreed todo. The victim's father testified that the victim was trying to establish his paternity of thechild.[FN*] The victim'sfather also testified that defendant had been to his home on numerous occasions and knew thatthe victim never locked the door and slept on the couch. Defendant's employers, Larry Knowlesand Janice Knowles, both testified that defendant was very upset in the days leading up to thepaternity proceeding and was fearful for the child's safety. When defendant showed up for workon April 20, 2012, Larry Knowles advised her that the matter was serious and that he hoped shehad a good alibi, to which defendant responded, "I have a good one." Janice Knowles testifiedthat when defendant came into work that morning, she stated, "Does anybody have anyquestions?" and then said "that [the victim] was a monster, but this didn't need to happen, thatshe had all her ducks in a row, she was going to win [the paternity case] today." The recordfurther shows that Borden shot the victim with a 12-gauge Mossberg shotgun. Brett Bacon,defendant's coworker, was in a relationship with defendant and had given her the Mossbergshotgun after the baby was born. Bacon had previously given defendant a shotgun at herrequest.
For his part, Hand testified that he initially understood that he and Borden were going to thevictim's home on the evening of April 19, 2012 to beat him up. Hand testified that Borden knewfrom defendant that there was an alarm on the porch, that the front door was always unlocked andthat the victim slept on the couch. As the evening progressed, Hand inquired as to when theywould approach the victim's house, to which Borden responded "that he was waiting for a phonecall" from defendant. After 9:00 p.m., Borden received a call from defendant, who advised thatthe victim had been fishing and would be awake so they had to "wait a little." Shortly thereafter,Borden told Hand that he was going to kill the victim and showed him the shotgun. When theyarrived at the victim's house, they approached from the side of the porch to avoid the alarm onthe steps, and opened the unlocked door to find the victim sleeping on the couch. Borden went inand fired the fatal shot, leaving a shell casing behind. They quickly left the scene, purchased ashovel at a nearby Walmart and buried the shotgun in an area that Hand knew of near PinnacleState Park. During the ensuing investigation, the shotgun was recovered and identified by Baconas the Mossberg shotgun that he had given to defendant. The shell casing matched theammunition that defendant had purchased at Walmart earlier in the evening. A forensicsinvestigator testified that it looked like someone had filed away the serial number.Correspondingly, the record indicates that defendant purchased a file at a Home Depot around5:00 p.m. on April 19, 2012.
There are further incriminating factors, including a series of text messages betweendefendant and Borden in the days and hours leading up to the shooting. Text messages betweendefendant and Borden on April 13, 2012 showed that defendant expressed concern aboutwitnesses backing out due to "fear of retaliation," with Borden reassuring her that there would beno hearing. On April 17, 2012, Borden wrote, "I just want u [sic] to no [sic] that we're gonna pullthis off I have faith." The text messages began early on the morning of April 19, 2012, withBorden writing at 6:00 a.m. that he would stop by to get "that thing u [sic] offered me" and ashort time later cautioning defendant to "get rid of that box." Shortly before 8:00 p.m., defendanttexted Borden that the victim was staying at his father's house. By 9:10 p.m., Borden texteddefendant, "Call me now" and, by 9:31 p.m., Borden advised defendant that "watching tv nowmayb [sic] asleep in an hour." Defendant responded, "Think we should stop txting [sic]. . . towers traceable??" At 11:17 p.m., Borden advised defendant that he was "justleaving work." The next morning, at 4:26 a.m., Borden wrote, "I think we are ready for whateverhe brings to court," to which defendant replied, "Wonder if he will show up this time lol." Thissequence demonstrates that there was a plan in place that was accomplished in advance of thepaternity hearing. Notably, a forensics investigator testified that defendant and Borden deletedmost of these messages from their phones, but the investigators were able to have the messagesretrieved. There was also evidence that defendant made numerous jailhouse phone calls askingher parents to speak to Bacon, stating, "It could be my demise" if they did not calm him down.Considering the cumulative evidence set forth above, and giving due deference to the jury'scredibility assessments, we find that the verdict accords with the weight of the evidence.
Next, defendant maintains that County Court erred in allowing Hand to testify as tostatements made by Borden on the evening of April 19, 2012. The objection came after Handtestified that Borden said that he was waiting for a phone call and the follow-up question wasasked, "Waiting for a phone call from who?"—to which Hand responded, from defendant.In our view, County Court properly overruled the objection and allowed the testimony under thecoconspirator exception to the hearsay rule (see People v Berkowitz, 50 NY2d 333, 341[1980]; People v Salko, 47 NY2d 230, 237-238 [1979]; People v Cancer, 16 AD3d 835,839 [2005], lv denied 5 NY3d 826 [2005]). Under this exception, "any declaration by aconspirator made during the course of and in furtherance of the conspiracy is admissible against acoconspirator as an exception to the hearsay rule" (People v Salko, 47 NY2d at 237). Toadmit such evidence, a prima facie case of conspiracy must first be established "without recourseto the declarations sought to be introduced" (id. at 238). In our view, given the proof asoutlined above and without considering the statements that Borden ostensibly made to Hand onthe evening of April 19, 2012, County Court correctly determined that the People did establish aprima facie case of conspiracy sufficient to admit Hand's testimony as to Borden'sstatements.
As to defendant's remaining contentions, we find that County Court properly denieddefendant's CPL 330.30 motion to set aside the verdict based on an unsubstantiated jurymisconduct claim. Defendant's challenge to the court's jury charge was not preserved by anappropriate objection (see People vBecoats, 17 NY3d 643, 650 [2011]). Finally, viewing the record in totality, we aresatisfied that defendant received the effective assistance of counsel (see People v Baldi,54 NY2d 137, 147 [1981]).
Clark, Devine, Aarons and Pritzker, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:A paternity hearing wasscheduled in Family Court on April 20, 2012, the day after the victim's murder.