| People v Lyons |
| 2021 NY Slip Op 06888 [200 AD3d 1222] |
| December 9, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Seth Lyons, Appellant. |
Mark Diamond, Albany, for appellant.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered December 17, 2018, upon a verdict convicting defendant of the crime of murder in thesecond degree.
In 2017, a deceased person (hereinafter the victim) was discovered under a bridge thatcrossed over abandoned railroad tracks. Later that same day, defendant was seen outside at anearby grocery store with his clothes and shoes covered in blood. Defendant originally claimedthat he was assaulted but later confessed to hitting the victim, stripping him of his clothes andcovering him with tree branches. In connection with this incident, defendant was charged byindictment with murder in the second degree. A suppression hearing was held, after whichCounty Court found that defendant's statements to law enforcement were admissible. Following ajury trial, defendant was convicted as charged. County Court sentenced defendant to a prisonterm of 25 years to life. Defendant appeals.
Turning first to County Court's suppression determination, "the safeguards required byMiranda are not triggered unless a suspect is subject to custodial interrogation"(People v Berg, 92 NY2d 701, 704 [1999] [internal quotation marks and citationomitted]). "The standard for assessing a suspect's custodial status is whether a reasonable personinnocent of any wrongdoing would have believed that he or she was not free to leave" (People v Paulman, 5 NY3d 122,129 [2005] [citations omitted]). When determining whether a suspect is in police custody,various factors are considered, "such as the amount of time the person spent with the police,whether his or her freedom of action was significantly restricted, the location of the questioningand the atmosphere under which it was conducted, the person's degree of cooperation, whether heor she was apprised of his or her constitutional rights and whether the questioning wasinvestigatory or accusatory in nature" (People v Mayerhofer, 283 AD2d 672, 673 [2001][internal quotation marks and citation omitted]).
Defendant contends that his conversation with the police officer at the grocery store shouldhave been suppressed. The suppression hearing testimony discloses that, when the police officerfirst initiated contact with defendant at the grocery store, defendant's movement was notrestricted. At the suppression hearing, the officer testified that he initiated contact with defendantand noticed a large amount of blood on his clothes. The officer encouraged him to come to thepolice station due to defendant's claim that he was a victim of an assault and robbery. Defendantinitially refused and was able to walk away from the officer. The officer confirmed that he didnot impede defendant's movement. Other officers arrived, after which defendant agreed to go tothe police station so long as he could first smoke a cigarette. After defendant finished smokingthe cigarette, he was driven to the police station in an unmarked vehicle. The [*2]officer testified that defendant was not handcuffed at this time andhe was not searched prior to entering the unmarked vehicle. Because the suppression hearingevidence demonstrates that defendant's movement was not restricted and inasmuch as theconversations or questions that the officer had with defendant were not accusatory in nature,County Court correctly found that any conversations that defendant had with the police officer atthe grocery store and prior to when he went to the police station did not stem from a custodialinterrogation (see People v Henry,114 AD3d 1025, 1027 [2014], lv dismissed 22 NY3d 1199 [2014]; People v Underdue, 89 AD3d1132, 1133 [2011], lv denied 19 NY3d 969 [2012]; People v Mayerhofer,283 AD2d at 673-674).
Defendant also argues that his statements given at the police station prior to whenMiranda warnings were administered should have been suppressed. County Court found,and the record confirms, that, at the police station, defendant was treated as a victim of an assaultand that he was not subjected to a custodial interrogation. Defendant was not asked questionsabout the killing, was not restricted in his movements and was not handcuffed. According to thetestimony of one police detective, defendant's demeanor was fine and he did not appear to beagitated. At one point during the questioning, a detective commented to defendant that he wasnot a suspect to any crime being investigated. Defendant was given food and cigarettes and, atvarious times, was taken outside the building to continue speaking with the detectives.Ultimately, a detective told defendant that he did not think he was being totally honest, to whichdefendant responded, "If that's what you want to think, then I'm out." Defendant, however,remained seated in the interview room and did not leave. The detective then told defendant thathe would be questioning him in a different fashion and read defendant his Miranda rights.After being advised of these rights, defendant broke down and admitted to killing the victim.Because the record supports the court's determination that defendant's statements to detectives atthe police station prior to the administration of Miranda warnings were not the product ofa custodial interrogation, it will not be disturbed (see People v Pascuzzi, 173 AD3d 1367, 1374 [2019], lvdenied 34 NY3d 953 [2019]; People v Van Amburg, 243 AD2d 845, 846 [1997],lv denied 91 NY2d 898 [1998]; People v Smith, 214 AD2d 845, 847 [1995],lv denied 86 NY2d 741 [1995]).
To the extent that defendant argues that the detectives took advantage of his mental illness,the record reveals that defendant did not appear psychologically or mentally impaired or underthe influence of drugs. Furthermore, the record does not support any contention that defendant'smental incapacity impacted his waiver of his Miranda rights (see People v Garrand, 189 AD3d1763, 1768-1769 [2020], lv denied 36 NY3d 1120 [2021]; People v Marx,305 AD2d 726[*3], 728-729 [2003], lv denied 100 NY2d596 [2003]; People v Pond, 217 AD2d 721, 722 [1995]). The record likewise beliesdefendant's argument that he made an unequivocal request for counsel (see People v Meadows, 180 AD3d1244, 1245 [2020], lv denied 35 NY3d 994 [2020]; People v Jabaut, 111 AD3d 1140,1142 [2013], lv denied 22 NY3d 1139 [2014]). Accordingly, County Court did not err inits suppression determination.
Relying on his extreme emotional disturbance defense, defendant argues that the verdict wasagainst the weight of the evidence.[FN*] To prove the affirmative defense of extremeemotional disturbance, defendant was required to demonstrate by a preponderance of theevidence, "first, that he . . . acted under the influence of an extreme emotionaldisturbance and, second, that there was a reasonable explanation or excuse for that disturbance"(People v Roche, 98 NY2d 70, 76 [2002]; see Penal Law § 125.25[1] [a]; People v Diaz, 15 NY3d40, 45 [2010]). "Whether the extreme emotional disturbance defense should apply is amatter that rests in the discretion of the jury" (People v Pascarella, 172 AD3d 1533, 1534 [2019] [citationomitted], lv denied 34 NY3d 935 [2019]; see People v Reese, 166 AD3d 1057, 1060-1061 [2018], lvdenied 33 NY3d 953 [2019]).
The trial evidence establishes that defendant confessed to one of the detectives that he feltdisrespected by the victim and became angry at the victim. Defendant punched the victim andstarted hitting him with whatever he could find, including a glass bottle, a brick, rocks and alarge log. Defendant also kicked the victim, removed his clothing and covered him with some oldtrees. Defendant's expert testified about defendant's substance abuse history, as well as hisschizoaffective disorder, chronic anxiety disorder, obsessive compulsive disorder andposttraumatic stress disorder. The expert interviewed defendant, reviewed relevant evidence andconcluded that defendant was suffering from an extreme emotional disturbance at the time of theincident at issue. Meanwhile, the People's expert testified that he interviewed defendant and alsoreviewed defendant's medical records and other relevant evidence. According to the People'sexpert, defendant was engaged with the victim during their altercation, was able to perceive whatwas going on and was able to recite the incident in detail to law enforcement officials. ThePeople's expert opined that defendant did not lack substantial capacity to form the intent to causethe victim's death and that he was not suffering from an extreme emotional disturbance at thepertinent time.
A contrary result would not have been unreasonable had the jury credited the expert prooftendered by defendant. The jury, however, was presented with competing proof on the issue ofextreme emotional disturbance and was free to credit the expert testimony offered by the Peopleover that of defendant's expert. Deferring to the jury's resolution of the conflicting proof and[*4]viewing the evidence in a neutral light, the verdict rejectingdefendant's affirmative defense of extreme emotional disturbance was not against the weight ofthe evidence (see People v Pascarella, 172 AD3d at 1536; People v Reese, 166AD3d at 1062; People v Benson,119 AD3d 1145, 1148 [2014], lv denied 24 NY3d 1118 [2015]; People vCosta, 256 AD2d 809, 809 [1998], lv denied 93 NY2d 872 [1999]).
Defendant's assertion of prosecutorial misconduct based upon certain remarks made duringsummation is unpreserved in the absence of a timely objection (see People v Terry, 196 AD3d840, 846-847 [2021], lv denied 37 NY3d 1030 [2021]; People v Planty, 155 AD3d 1130,1133 [2017], lv denied 30 NY3d 1118 [2018]). Furthermore, the failure to object did notconstitute ineffective assistance because any objection would have had little chance of success(see People v Meadows, 183 AD3d1016, 1022-1023 [2020], lv denied 35 NY3d 1047 [2020]). In this regard, thechallenged comments did not impermissibly shift the burden of proof or provide an erroneousstatement of the applicable law. Defendant also faults his counsel for not stating on summationthat his confession was illegally procured. This mere disagreement with trial strategy, however,does not amount to ineffective assistance (see People v Hogencamp, 295 AD2d 643, 644[2002], lv denied 98 NY2d 697 [2002]). Viewing the record in its entirety, defendantreceived meaningful representation (seePeople v Warren, 160 AD3d 1132, 1137 [2018], lv denied 31 NY3d 1154[2018]).
Regarding the sentence, although County Court imposed the maximum permissible term, therecord fails to disclose any abuse of discretion or extraordinary circumstances that warrant areduction of the sentence in the interest of justice (see People v Lee, 183 AD3d 1183, 1191 [2020], lv denied35 NY3d 1114 [2020]; People vJones, 139 AD3d 1189, 1191 [2016], lv denied 28 NY3d 932 [2016]). Nor doesthe record support defendant's claim of vindictiveness by the court (see People v Lind, 133 AD3d 914,917-918 [2015], lv denied 27 NY3d 1153 [2016]). To the extent that defendant contendsthat the imposed sentence violated his constitutional rights, such contention is unpreserved (see People v McMillan, 185 AD3d1208, 1213 [2020], lv denied 35 NY3d 1114 [2020]).
Egan Jr., J.P., Lynch, Clark and Reynolds Fitzgerald, JJ., concur. Ordered that the judgmentis affirmed.
Footnote *:Defendant's legal sufficiencyargument is unpreserved because he failed to renew his trial motion to dismiss after the Peoplepresented rebuttal evidence (see Peoplev Odofin, 153 AD3d 972, 974 [2017]).