Opinion
1156 KA 20-00601
03-19-2021
The PEOPLE of the State of New York, Respondent, v. Kaitlyn A. CONLEY, Defendant-Appellant.
SIMONE M. SHAHEEN, COOPERSTOWN, AND CHRISTOPHER J. PELLI, UTICA, FOR DEFENDANT-APPELLANT. KAITLYN A. CONLEY, DEFENDANT-APPELLANT PRO SE. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
SIMONE M. SHAHEEN, COOPERSTOWN, AND CHRISTOPHER J. PELLI, UTICA, FOR DEFENDANT-APPELLANT.
KAITLYN A. CONLEY, DEFENDANT-APPELLANT PRO SE.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of manslaughter in the first degree ( Penal Law § 125.20 [1] ). The conviction stems from the death of Mary Yoder, a 60-year-old chiropractor who owned Chiropractic Family Care (CFC) in Whitesboro, New York, with her husband, William (Bill) Yoder. Mary experienced gastrointestinal distress and died two days later. The Onondaga County Medical Examiner's Office (ME's Office) determined that Mary died of colchicine toxicity. In the course of its investigation into Mary's death, the Oneida County Sheriff's Office (OCSO) received a call from the ME's Office indicating that it had received an anonymous letter that implicated the Yoders’ youngest child, Adam, in Mary's death and stated that a bottle of colchicine could be located under the front passenger seat of Adam's Jeep. After being questioned at the OCSO, Adam granted investigators limited consent to search the area in question. The search uncovered a bottle of colchicine and a crumpled receipt from Art Chemicals for the purchase of the colchicine ; the receipt bore an email address that included the letters "mradamyoder." The OCSO then interviewed defendant, who was CFC's office manager and Adam's former girlfriend. The day after that interview, defendant returned to the OCSO and provided a DNA sample. During her third interview, on December 21, 2015, defendant admitted that she wrote the anonymous letter. On February 5, 2016, the final time defendant was interviewed, defendant acknowledged that she purchased a prepaid credit card in Adam's name. The serial number on that credit card matched the serial number on the Art Chemicals receipt. DNA testing excluded Adam's DNA from the mixture of three contributors on the colchicine vial, and determined that defendant was a major contributor of DNA that was found on the colchicine vial and the cardboard wrapper in which the vial was encased. Defendant was indicted for, inter alia, murder in the second degree (§ 125.25 [1]) for intentionally causing Mary's death. Defendant's first jury trial ended in a hung jury. Following the second trial, the jury found defendant not guilty of murder in the second degree and guilty of manslaughter in the first degree, which was submitted to the jury as a lesser included offense of murder in the second degree. County Court sentenced defendant to a determinate term of 23 years of imprisonment and five years of postrelease supervision.
We reject the contention raised in defendant's pro se supplemental brief that the search warrant for defendant's cell phone was issued without probable cause because it was based on stale information. "Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but[, rather, it] merely [requires] information sufficient to support a reasonable belief that an offense has been or is being committed or that the evidence of a crime may be found in a certain place" ( People v. Bigelow , 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ). "[P]robable cause is not to be determined by counting the number of days between the occurrence of the events relied upon and the issuance of the search warrant. Information may be acted upon as long as the practicalities dictate that a state of facts existing in the past, which is sufficient to give rise to probable cause, continues to exist at the time the application for a search warrant is made" ( People v. Clarke , 173 A.D.2d 550, 550, 570 N.Y.S.2d 305 [2d Dept. 1991] ; see People v. Bryan , 191 A.D.2d 1029, 1030, 595 N.Y.S.2d 150 [4th Dept. 1993], lv denied 82 N.Y.2d 714, 602 N.Y.S.2d 811, 622 N.E.2d 312 [1993] ). According "great deference to the issuing Judge" ( People v. Harper , 236 A.D.2d 822, 823, 653 N.Y.S.2d 771 [4th Dept. 1997], lv denied 89 N.Y.2d 1094, 660 N.Y.S.2d 388, 682 N.E.2d 989 [1997] ), we conclude that the court properly determined that there was sufficient information in the warrant application to support a reasonable belief that evidence of a crime was on defendant's cell phone (see People v. Griswold , 155 A.D.3d 1658, 1658-1659, 64 N.Y.S.3d 450 [4th Dept. 2017], lv denied 31 N.Y.3d 984, 77 N.Y.S.3d 661, 102 N.E.3d 438 [2018] ). Defendant's related contention that the search warrant failed to meet the particularity requirement is unpreserved (see CPL 470.05 [2] ; see generally People v. Williams , 127 A.D.3d 612, 612, 8 N.Y.S.3d 133 [1st Dept. 2015], lv denied 27 N.Y.3d 1009, 38 N.Y.S.3d 118, 59 N.E.3d 1230 [2016] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice.
We reject the contentions of defendant, presented in her pro se supplemental brief, that the court erred in failing to suppress certain statements she made to police investigators on December 21, 2015, and February 5, 2016. "[B]oth the elements of police ‘custody’ and police ‘interrogation’ must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda " ( People v. Huffman , 41 N.Y.2d 29, 33, 390 N.Y.S.2d 843, 359 N.E.2d 353 [1976] ). "[T]he fact that a defendant is being interviewed in the police station does not necessarily mean that he [or she] is to be considered ‘in custody’ " ( People v. Yukl , 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969], cert denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 [1970] ). On December 21, 2015, defendant arrived at the police station on her own; she was not handcuffed, and she was not under arrest (see People v. MacGilfrey , 288 A.D.2d 554, 556, 733 N.Y.S.2d 254 [3d Dept. 2001], lv denied 97 N.Y.2d 757, 742 N.Y.S.2d 617, 769 N.E.2d 363 [2002] ). Defendant was only a witness at that point, and investigators wanted to find out the nature of defendant's relationship with Adam and to learn additional information about Bill, with whom defendant worked and whom investigators considered a person of interest. Although defendant's statement that she wrote the anonymous letter caused investigators to look at her as a person of interest, defendant went home at the conclusion of the interview. Consequently, the court, which reviewed the recording of the interview, properly determined that defendant was not in custody during the interview on December 21 (see People v. Morris , 173 A.D.3d 1797, 1799, 104 N.Y.S.3d 453 [4th Dept. 2019], lv denied 34 N.Y.3d 953, 110 N.Y.S.3d 653, 134 N.E.3d 652 [2019] ).
With respect to the interview on February 5, 2016, in which defendant arrived with and left with her parents, we similarly conclude, contrary to defendant's further contention in her pro se supplemental brief, that she was not in custody (see id. ). Defendant's contention that the police used "psychological coercion" to secure her statements is not preserved (see People v. Ramirez , 172 A.D.3d 619, 619-620, 100 N.Y.S.3d 262 [1st Dept. 2019], lv denied 34 N.Y.3d 936, 109 N.Y.S.3d 721, 133 N.E.3d 424 [2019] ; People v. Hudson , 158 A.D.3d 1087, 1087, 70 N.Y.S.3d 676 [4th Dept. 2018], lv denied 31 N.Y.3d 1117, 81 N.Y.S.3d 377, 106 N.E.3d 760 [2018] ) and is, in any event, without merit (see People v. Warrington , 146 A.D.3d 1233, 1234-1235, 45 N.Y.S.3d 683 [3d Dept. 2017], lv denied 29 N.Y.3d 1038, 62 N.Y.S.3d 307, 84 N.E.3d 979 [2017] ).
Contrary to defendant's contention in her main brief, the court did not err in charging the jury on the lesser included offense of manslaughter in the first degree inasmuch as there is a reasonable view of the evidence to support a finding that defendant committed the lesser offense but not the greater (see People v. Hull , 27 N.Y.3d 1056, 1058, 35 N.Y.S.3d 284, 54 N.E.3d 1155 [2016] ), i.e., that she intended to cause serious physical injury to the victim rather than to kill her (see People v. Cotton , 153 A.D.3d 1580, 1580-1581, 60 N.Y.S.3d 896 [4th Dept. 2017], lv denied 30 N.Y.3d 1059, 71 N.Y.S.3d 9, 94 N.E.3d 491 [2017] ; People v. Nesmith , 36 A.D.3d 463, 464, 831 N.Y.S.2d 109 [1st Dept. 2007], lv denied 8 N.Y.3d 948, 836 N.Y.S.2d 559, 868 N.E.2d 242 [2007] ; People v. Faison , 265 A.D.2d 422, 422-423, 697 N.Y.S.2d 296 [2d Dept. 1999], lv denied 95 N.Y.2d 934, 721 N.Y.S.2d 610, 744 N.E.2d 146 [2000] ).
Defendant failed to preserve her contention in her main brief regarding the manner in which the court instructed the jury on manslaughter in the first degree (see People v. Maltese , 148 A.D.3d 1780, 1782-1783, 50 N.Y.S.3d 770 [4th Dept. 2017], lv denied 29 N.Y.3d 1093, 63 N.Y.S.3d 9, 85 N.E.3d 104 [2017] ; People v. Clark , 142 A.D.3d 1339, 1340, 39 N.Y.S.3d 325 [4th Dept. 2016], lv denied 28 N.Y.3d 1143, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017] ; People v. Porter , 119 A.D.3d 438, 439, 989 N.Y.S.2d 480 [1st Dept. 2014], lv denied 24 N.Y.3d 1046, 998 N.Y.S.2d 316, 23 N.E.3d 159 [2014] ). In any event, the instruction given by the court was consistent with the pattern Criminal Jury Instructions (see CJI2d [NY] Penal Law § 125.20 [1] ). Defendant's contention regarding the submission to the jury of an annotated verdict sheet is waived inasmuch as counsel for defendant consented to its use (see People v. Howard , 167 A.D.3d 1499, 1500, 90 N.Y.S.3d 427 [4th Dept. 2018], lv denied 32 N.Y.3d 1205, 99 N.Y.S.3d 232, 122 N.E.3d 1145 [2019] ; see generally People v. Johnson , 96 A.D.3d 1586, 1587, 946 N.Y.S.2d 769 [4th Dept. 2012], lv denied 19 N.Y.3d 1027, 953 N.Y.S.2d 560, 978 N.E.2d 112 [2012] ). Defendant failed to preserve for our review her related contention with respect to the court's compliance with CPL 310.20 (2) (see People v. Allen , 122 A.D.3d 1423, 1424, 997 N.Y.S.2d 202 [4th Dept. 2014], lv denied 25 N.Y.3d 987, 10 N.Y.S.3d 530, 32 N.E.3d 967 [2015], reconsideration denied 25 N.Y.3d 1197, 16 N.Y.S.3d 520, 37 N.E.3d 1163 [2015] ; People v. Dombrowski-Bove , 300 A.D.2d 1122, 1124, 753 N.Y.S.2d 259 [4th Dept. 2002] ).
Defendant correctly concedes that she failed to preserve for our review her contention in her main brief that the evidence is legally insufficient to support the conviction inasmuch as she presented evidence after the court denied her motion for a trial order of dismissal at the close of the People's case but failed to renew her motion at the close of the proof (see People v. Hines , 97 N.Y.2d 56, 61-62, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ). In any event, that contention lacks merit (see People v. Ferguson , 177 A.D.3d 1247, 1248, 112 N.Y.S.3d 368 [4th Dept. 2019] ; see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Viewing the evidence in light of the elements of the crime 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, contrary to defendant's contention in her pro se supplemental brief, that the verdict is not against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Contrary to defendant's related contention in her main brief, " ‘the second trial did not violate the prohibition against double jeopardy inasmuch as the evidence at the first trial was legally sufficient to support a conviction’ " ( People v. Duda , 45 A.D.3d 1464, 1465, 845 N.Y.S.2d 671 [4th Dept. 2007], lv denied 10 N.Y.3d 764, 854 N.Y.S.2d 326, 883 N.E.2d 1261 [2008] ; People v. Casey , 37 A.D.3d 1113, 1114, 829 N.Y.S.2d 309 [4th Dept. 2007], lv denied 8 N.Y.3d 983, 838 N.Y.S.2d 486, 869 N.E.2d 662 [2007] ).
Defendant did not object to the admission of the alleged Molineux evidence at issue on appeal and thus failed to preserve for our review her contention in her main brief that the court erred in admitting that evidence (see CPL 470.05 [2] ). In any event, defense counsel's opening statement opened the door to the alleged propensity evidence by discussing the manner in which Adam got sick, shortly before Mary's death, after defendant provided him with a supplement called "Alpha Brain" (see People v. Wright , 5 A.D.3d 873, 876, 773 N.Y.S.2d 486 [3d Dept. 2004], lv denied 3 N.Y.3d 651, 782 N.Y.S.2d 422, 816 N.E.2d 212 [2004] ; People v. Davis , 196 A.D.2d 880, 881, 602 N.Y.S.2d 169 [2d Dept. 1993], lv denied 82 N.Y.2d 848, 606 N.Y.S.2d 600, 627 N.E.2d 522 [1993] ). We reject defendant's related contention in her main brief that she was thus denied effective assistance of counsel (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). " ‘[I]t is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations’ for [defense] counsel's alleged shortcomings" ( People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998], quoting People v. Rivera , 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ), and defendant failed to meet that burden.
Inasmuch as we have concluded that defendant's contentions regarding the legal sufficiency of the evidence lack merit, we reject defendant's further contention in her main brief that defense counsel's failure to preserve those issues for review constitutes ineffective assistance (see Ferguson , 177 A.D.3d at 1249, 112 N.Y.S.3d 368 ; see generally Baldi , 54 N.Y.2d at 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). Furthermore, to the extent that defendant contends that defense counsel was ineffective in failing to object to the annotated verdict sheet and, indeed, in consenting to its submission, we conclude under the circumstances of this case that any such error "was not so prejudicial as to deprive defendant of a fair trial and thus does not constitute ineffective assistance" ( People v. James , 114 A.D.3d 1202, 1207, 980 N.Y.S.2d 645 [4th Dept. 2014], lv denied 22 N.Y.3d 1199, 986 N.Y.S.2d 420, 9 N.E.3d 915 [2014] ; see Porter , 119 A.D.3d at 439, 989 N.Y.S.2d 480 ; see also Dombrowski-Bove , 300 A.D.2d at 1124, 753 N.Y.S.2d 259 ). To the extent that defendant's remaining claims of ineffective assistance of counsel are based on evidence outside the record, a CPL 440.10 motion is required to review those claims (see People v. Wilson [appeal No. 2], 162 A.D.3d 1591, 1592, 78 N.Y.S.3d 819 [4th Dept. 2018] ; People v. Gomez , 52 A.D.3d 395, 395, 860 N.Y.S.2d 522 [1st Dept. 2008], lv denied 11 N.Y.3d 736, 864 N.Y.S.2d 395, 894 N.E.2d 659 [2008] ).
Defendant's claims in her main brief of prosecutorial misconduct are, for the most part, unpreserved (see CPL 470.05 [2] ; People v. Maull , 167 A.D.3d 1465, 1467-1468, 90 N.Y.S.3d 412 [4th Dept. 2018], lv denied 33 N.Y.3d 951, 100 N.Y.S.3d 185, 123 N.E.3d 844 [2019] ). In any event, none of the alleged improprieties were so egregious as to deprive defendant of a fair trial (see People v. Everson , 158 A.D.3d 1119, 1122, 70 N.Y.S.3d 301 [4th Dept. 2018], lv denied 31 N.Y.3d 1081, 79 N.Y.S.3d 102, 103 N.E.3d 1249 [2018], reconsideration denied 31 N.Y.3d 1147, 83 N.Y.S.3d 429, 108 N.E.3d 503 [2018], cert denied ––– U.S. ––––, 139 S. Ct. 1269, 203 L.Ed.2d 286 [2019] ; People v. Swan , 126 A.D.3d 1527, 1527, 4 N.Y.S.3d 462 [4th Dept. 2015], lv denied 26 N.Y.3d 972, 18 N.Y.S.3d 608, 40 N.E.3d 586 [2015] ). Defendant's contention that the prosecutor arranged to have a former colleague act as Adam's counsel when Adam was a suspect or key witness and then had that attorney improperly bolster Adam's credibility and testify against defendant at trial is not only unpreserved but also concerns matters outside the record that should be raised by way of a motion pursuant to CPL 440.10 (see People v. Carlisle , 50 A.D.3d 1451, 1451, 856 N.Y.S.2d 410 [4th Dept. 2008], lv denied 10 N.Y.3d 957, 863 N.Y.S.2d 141, 893 N.E.2d 447 [2008] ).
Contrary to defendant's contention in her main brief, the court acted properly with respect to both trials and, in reviewing the records of both trials, we conclude that "there [is no] basis on which to reasonably question the court's ability to preside over the matter[s]" ( People v. Gringer , 160 A.D.3d 660, 661, 74 N.Y.S.3d 309 [2d Dept. 2018] ).
Defendant's sentence is not unduly harsh or severe. We have reviewed defendant's remaining contentions in her main and pro se supplemental briefs and conclude that none warrants reversal or modification of the judgment.