Opinion
429 KA 18-00586
07-24-2020
The PEOPLE of the State of New York, Respondent, v. Pedro L. COLON, Defendant-Appellant.
ROBERT A. DINIERI, CLYDE, FOR DEFENDANT-APPELLANT. MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF COUNSEL), FOR RESPONDENT.
ROBERT A. DINIERI, CLYDE, FOR DEFENDANT-APPELLANT.
MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., NEMOYER, TROUTMAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminally negligent homicide ( Penal Law § 125.10 ) and criminal possession of a weapon (CPW) in the third degree (§ 265.02 [1] ). At trial, the Medical Examiner testified that the victim suffered three stab wounds to the chest, the fatal blow being one that perforated his heart. Defendant took the witness stand, ostensibly to offer testimony favorable to his justification defense. Defendant testified that he stabbed the unarmed victim multiple times with a knife, once in the doorway of defendant's apartment and at least one other time in the common area of the apartment building. Then he pushed the victim, went back into his apartment, and shut the door. A police officer testified that he responded to the scene, found the victim in the street, and followed a trail of blood from the victim's body to the apartment. When the officer arrived at the apartment, defendant had just gotten out of the shower.
We agree with defendant that County Court erred in refusing to suppress his statements to the police. If a person who is subject to police interrogation "indicates in any manner, at any time prior to or during questioning, that he [or she] wishes to remain silent, the interrogation must cease" ( Miranda v. Arizona , 384 U.S. 436, 473-474, 86 S.Ct. 1602, 16 L.Ed.2d 694 [1966] ; see People v. Ferro , 63 N.Y.2d 316, 322, 482 N.Y.S.2d 237, 472 N.E.2d 13 [1984], cert denied 472 U.S. 1007, 105 S.Ct. 2700, 86 L.Ed.2d 717 [1985] ). The assertion of the right to remain silent " ‘must be unequivocal and unqualified’ " ( People v. Zacher , 97 A.D.3d 1101, 1101, 948 N.Y.S.2d 509 [4th Dept. 2012], lv denied 20 N.Y.3d 1015, 960 N.Y.S.2d 359, 984 N.E.2d 334 [2013] ; see People v. Morton , 231 A.D.2d 927, 928, 647 N.Y.S.2d 897 [4th Dept. 1996], lv denied 89 N.Y.2d 944, 655 N.Y.S.2d 895, 678 N.E.2d 508 [1997] ). Whether a defendant's assertion of that right was "unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding [that assertion,] including the defendant's demeanor, manner of expression and the particular words found to have been used by the defendant" ( People v. Glover , 87 N.Y.2d 838, 839, 637 N.Y.S.2d 683, 661 N.E.2d 155 [1995] ). Once invoked, the right to remain silent "must be ‘scrupulously honored’ " ( Ferro , 63 N.Y.2d at 322, 482 N.Y.S.2d 237, 472 N.E.2d 13 ; see Michigan v. Mosley , 423 U.S. 96, 103-104, 96 S.Ct. 321, 46 L.Ed.2d 313 [1975] ).
Here, defendant unequivocally informed the police immediately after being advised of his Miranda rights that "he didn't want to talk." No reasonable police officer could have interpreted that statement as anything other than a desire not to talk to the police (see People v. Douglas , 8 A.D.3d 980, 981, 778 N.Y.S.2d 622 [4th Dept. 2004], lv denied 3 N.Y.3d 705, 785 N.Y.S.2d 33, 818 N.E.2d 675 [2004] ). Regardless, the police continued the interrogation, thereby failing to " ‘scrupulously honor[ ]’ defendant's right to remain silent" ( People v. Reid , 34 A.D.3d 1273, 1273, 825 N.Y.S.2d 619 [4th Dept. 2006], lv denied 8 N.Y.3d 884, 832 N.Y.S.2d 496, 864 N.E.2d 626 [2007], quoting Miranda , 384 U.S. at 479, 86 S.Ct. 1602 ).
Nevertheless, the error is harmless because the evidence of defendant's guilt is overwhelming and there is no reasonable possibility that any error in admitting defendant's statements to the police contributed to his conviction (see People v. Young , 153 A.D.3d 1618, 1619, 61 N.Y.S.3d 752 [4th Dept. 2017], lv denied 30 N.Y.3d 1065, 71 N.Y.S.3d 15, 94 N.E.3d 497 [2017], reconsideration denied 31 N.Y.3d 1123, 81 N.Y.S.3d 383, 106 N.E.3d 766 [2018] ; see generally People v. Crimmins , 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
We reject defendant's further contention that the verdict is repugnant. " ‘[A] verdict is repugnant only if it is legally impossible—under all conceivable circumstances—for the jury to have convicted the defendant on one count but not the other,’ and, ‘[i]f there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case’ " ( People v. DeLee , 24 N.Y.3d 603, 608, 2 N.Y.S.3d 382, 26 N.E.3d 210 [2014], rearg denied 31 N.Y.3d 1127, 81 N.Y.S.3d 351, 106 N.E.3d 734 [2018] ). The verdict here is not repugnant because it is legally possible for a person to possess a knife with the intent to use it unlawfully against another (see Penal Law §§ 265.01 [2] ; 265.02 [1] ), but for the person to change his or her mind and subsequently engage in negligent behavior resulting in death (see § 125.10 ).
Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence because his motion for a trial order of dismissal was not " ‘specifically directed’ at the alleged error" asserted on appeal ( People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). Nevertheless, " ‘we necessarily review the evidence adduced as to each of the elements of the crimes in the context of our review of defendant's challenge regarding the weight of the evidence’ " ( People v. Stepney , 93 A.D.3d 1297, 1298, 940 N.Y.S.2d 752 [4th Dept. 2012], lv denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Defendant next contends that the court erred in imposing consecutive sentences because the offenses were "committed through a single act" ( Penal Law § 70.25 [2] ). We reject that contention. In cases concerning consecutive sentencing in the CPW context, we employ a framework that "appropriately reflects the heightened level of integration between the possession and the ensuing substantive crime for which the weapon was used" ( People v. Wright , 19 N.Y.3d 359, 365, 948 N.Y.S.2d 228, 971 N.E.2d 358 [2012] ). To determine whether a single act constituted both offenses under section 70.25 (2), we look to when the crime of possession was completed, i.e., both the actus reus and mens rea (see Wright , 19 N.Y.3d at 365, 948 N.Y.S.2d 228, 971 N.E.2d 358 ). "Only where the act of possession is accomplished before the commission of the ensuing crime and with a mental state that both satisfies the statutory mens rea element and is discrete from that of the underlying crime may consecutive sentences be imposed" ( id. ). Consecutive sentencing is permissible here because defendant's act of possessing the knife was accomplished before he used it to kill the victim and "defendant's possession [thereof] was marked by an unlawful intent separate and distinct from" his intent with respect to the homicide ( id. at 367, 948 N.Y.S.2d 228, 971 N.E.2d 358 ). Indeed, the mental state associated with the CPW count, i.e., intent to use the knife unlawfully, is discrete from the mental state associated with the homicide count, i.e., negligence (cf. id. ).
We have considered defendant's remaining contentions and conclude that none warrants reversal or modification of the judgment.