| People v Slocum |
| 2019 NY Slip Op 08732 [178 AD3d 1131] |
| December 5, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Matthew A. Slocum, Appellant. |
Mark A. Diamond, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Washington County (McKeighan,J.), rendered July 14, 2017, upon a verdict convicting defendant of the crimes of murder in thesecond degree (three counts), arson in the third degree, tampering with physical evidence, petitlarceny and criminal possession of a weapon in the third degree.
Defendant was alleged to have shot his mother, stepfather and stepbrother, stolen some oftheir property, then set their house on fire. A jury found defendant guilty of murder in the seconddegree (three counts), arson in the third degree, tampering with physical evidence, petit larcenyand criminal possession of a weapon in the third degree.[FN*] County Court sentenced defendant, as a secondfelony offender, to prison terms of 25 years to life for each of the three murder convictions, torun consecutively; 7
Defendant's challenge to the legal sufficiency of the evidence is not preserved because at trialhe did not raise any specific ground for dismissal (see People v Hawkins, 11 NY3d 484, 492 [2008]; People v Cruz, 131 AD3d 724,724 [2015], lv denied 26 NY3d 1087 [2015]). "However, a weight of the evidencechallenge, which bears no preservation requirement, also requires consideration of the adequacyof the evidence as to each element of the crimes" (People v Cruz, 131 AD3d at 725[citations omitted]; accord People vMadsen, 168 AD3d 1134, 1135 [2019]; see People v Danielson, 9 NY3d 342, 349 [2007]). In that review,this Court must determine whether an acquittal would not have been unreasonable and, if so,"must weigh conflicting testimony, review any rational inferences that may be drawn from theevidence and evaluate the strength of such conclusions[, then,] [b]ased on the weight of thecredible evidence, . . . decide[ ] whether the jury was justified in finding thedefendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d at 348).
Defendant's girlfriend testified that, on the night of the incident, she awoke and sawdefendant standing, with a long gun in his hand, over the stepbrother. She then saw a flash andheard a loud noise. Defendant told her to pack their things, as he went around the house turningoff lights "to make people think that they were sleeping, and [because he] didn't want the cops tocome." She then observed defendant taking firearms from a room in the house and loading theminto a vehicle. According to the girlfriend, defendant went into his mother's room and grabbedsome items, including her purse, which was covered in blood. The girlfriend saw the mother andstepfather covered in a blanket. Defendant handed the purse to the girlfriend and directed her toremove any money and keys. After she did so, she washed the blood from her hands. Defendantgrabbed a gas can, went inside and dumped gas all over, made a trail out to the porch and lit it.Upon realizing that they had taken the keys to the wrong vehicle, defendant grabbed some gunsand other items from the first vehicle, loaded them into a second vehicle and drove off with thegirlfriend and their baby. Defendant handed the girlfriend a cell phone he had taken from thestepbrother so that she could call her mother.
At the girlfriend's mother's house, defendant borrowed a shirt because he was shirtless, andasked where he could get money for old coins and guns. After leaving that house, defendantthrew the firearms over a fence beside the road and went to pawn shops to sell coins and jewelrythat belonged to his mother. Defendant told the girlfriend that he was sorry for ruining their lives.In letters he wrote to her from jail, he also apologized for everything, and stated that he knewwho to blame and that he wished the police had shot him. Police recovered the guns from theroadside, after the girlfriend showed them where defendant had thrown them. Video from twopawn shops and copies of defendant's letters corroborated portions of her testimony, as didtestimony from the girlfriend's mother and stepfather, which confirmed that defendant arrivedshirtless (which was unusual for him), asked about pawning items, and smelled like acampfire.
Defendant's cousin testified that, on the day before the incident, defendant told his mother,"I'll burn your house down," after she declined his request for money. An inmate who was housedwith defendant testified that, at first, defendant told him that the girlfriend committed the crimes,but, over time, defendant admitted that he killed the victims. A correction officer testified thatshe once heard defendant shout out from his dorm, "I'm here for murder. Don't be mixing me inwith these others," and, another time, defendant told her "you don't know who . . . Iam; I'm a murderer." Autopsies showed that the victims died from gunshot wounds to the head,while they were lying down, before the fire began. The mother's blood was found on her purse,some dollar bills, the baby's burp cloth, the passenger seats of the two vehicles, the barrel of agun, defendant's shorts and the girlfriend's shirt. Although an expert in blood stain patternanalysis testified that the blood spots in one area of the girlfriend's shirt were consistent withblood spatters, he could not determine what caused them. Defendant's DNA was discovered onthe stepbrother's cell phone.
The verdicts are not against the weight of the credible evidence. The girlfriend testified thatshe observed defendant shoot the stepbrother and saw the other two victims covered by blankets.Other witnesses confirmed that they heard several gunshots around the same time, defendantmade incriminating statements admitting that he committed the murders and he wrote lettersapologizing for his actions. This trial testimony, as well as corroborating evidence, supports theverdicts that defendant intended to and caused the death of the victims (see Penal Law§ 125.25 [1]). Defendant's contention that the girlfriend was the one who committedthe crimes presented a credibility issue for the jury to resolve (see People v Delosh, 2 AD3d 1047, 1049 [2003], lv denied1 NY3d 626 [2004]), and it was reasonably resolved against defendant.
Similarly, the girlfriend's testimony that she observed defendant intentionally start the fire,the testimony that defendant smelled of smoke and expert testimony that the fire at the victims'residence was intentionally set support the verdict that defendant is guilty of arson in the thirddegree (see Penal Law § 150.10 [1]; see also People v Adams, 43 AD3d 1423, 1424 [2007], lvdenied 9 NY3d 1004 [2007]). The girlfriend's testimony that defendant turned off lightsbecause he was concerned about other people or the police finding out about what was happeningin the house, then set the house on fire, support the inference that he intended to destroy evidenceof his murders that he believed would be used against him in an official proceeding. Thus, theweight of the evidence supports the verdict that defendant tampered with physical evidence(see Penal Law § 215.40 [2]; see generally People v Meran, 143 AD3d 423, 424 [2016], lvdenied 28 NY3d 1074 [2016]; People v Thompson, 75 AD3d 760, 764 [2010], lv denied15 NY3d 896 [2010]).
The record contains proof that the stepbrother used his cell phone a few hours before themurders, defendant's DNA was found on the cell phone, defendant handed the stepbrother's cellphone (identified by a picture of the stepbrother's child on the main screen) to the girlfriend andtold her to use it, and defendant had the cell phone when police encountered him. This evidencesupports the conviction for petit larceny (see Penal Law § 155.25). Thegirlfriend's testimony that she saw defendant shoot the stepbrother with a firearm, and proof fromthe autopsies that the victims died as a result of gunshot wounds, established that defendantpossessed a gun with the intent to use it against another person, supporting the conviction forcriminal possession of a weapon in the third degree (see Penal Law§ 265.02 [1]). Thus, none of the convictions is against the weight of theevidence.
By not objecting during the prosecutor's summation, defendant failed to preserve hisargument that the prosecutor committed misconduct (see People v Sostre, 172 AD3d 1623, 1626-1627 [2019], lvdenied 34 NY3d 938 [2019]; Peoplev Stanford, 130 AD3d 1306, 1309 [2015], lv denied 26 NY3d 1043 [2015]).Counsel's failure to object to the prosecutor's remarks did not amount to ineffective assistance ofcounsel (see People v Stanford, 130 AD3d at 1309).
County Court did not err in running some of the prison terms consecutively. Penal Law§ 70.25 (2) provides that, "[w]hen more than one sentence of imprisonment isimposed on a person for two or more offenses committed through a single act or omission, orthrough an act or omission which in itself constituted one of the offenses and also was a materialelement of the other, the sentences . . . must run concurrently." However, the courthas discretion to impose consecutive sentences when "the convictions arose from separate anddistinct acts, notwithstanding that they occurred in the course of a continuous incident" (People v Dunham, 172 AD3d1462, 1466 [2019] [internal quotation marks and citations omitted], lv denied 33NY3d 1068 [2019]; see People v Brown, 80 NY2d 361, 364 [1992]). As relevant to thisargument, defendant was sentenced to prison terms of 7
Finally, we have reviewed the arguments raised in defendant's pro se supplemental brief andfind them to be without merit.
Egan Jr., J.P., Clark and Devine, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:At a previous trial, County Courtdismissed four other counts, and the jury found defendant guilty of the same seven counts atissue here. Upon appeal from that judgment of conviction, this Court, among other things,determined that defendant was denied his right to counsel during custodial questioning and,therefore, reversed the judgment of conviction, partially granted defendant's suppression motionand ordered a new trial (133 AD3d 972 [2015], appeal dismissed 29 NY3d 954 [2017]).