Opinion
1019 KA 19-01644
01-28-2022
The PEOPLE of the State of New York, Respondent, v. Taneasha HILL, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (MATTHEW BELLINGER OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (MATTHEW BELLINGER OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting her upon a jury verdict of 58 counts of falsifying business records in the second degree ( Penal Law § 175.05 [1] ), defendant contends that County Court erred in admitting exhibits 5, 6, 7, 17 and 18 in evidence.
Defendant failed to preserve for our review her contention that she was denied her right of confrontation with respect to exhibits 5, 6 and 7 (see People v. Liner , 9 N.Y.3d 856, 856-857, 840 N.Y.S.2d 755, 872 N.E.2d 868 [2007], rearg denied 9 N.Y.3d 941, 844 N.Y.S.2d 782, 876 N.E.2d 510 [2007] ). In any event, after reviewing the pertinent factors (see generally People v. Rawlins , 10 N.Y.3d 136, 151-156, 855 N.Y.S.2d 20, 884 N.E.2d 1019 [2008], cert denied 557 U.S. 934, 129 S.Ct. 2856, 174 L.Ed.2d 601 [2009] ), we conclude that the records at issue, i.e., wage reports compiled by the New York State Department of Labor, are not testimonial in nature (see generally People v. Freycinet , 11 N.Y.3d 38, 41-42, 862 N.Y.S.2d 450, 892 N.E.2d 843 [2008] ). Consequently, contrary to defendant's further contention, we conclude that she "was not deprived of effective assistance by defense counsel's failure to object [on confrontation grounds to the admission of exhibits 5, 6 and 7] inasmuch as any such objection would have had little or no chance of success" ( People v. Thomas , 176 A.D.3d 1639, 1641, 111 N.Y.S.3d 155 [4th Dept. 2019], lv denied 34 N.Y.3d 1082, 116 N.Y.S.3d 166, 139 N.E.3d 824 [2019] ).
Defendant next challenges the admission of exhibit 17 on foundation grounds. Defendant's contention that some of the documents in exhibit 17 were not properly admitted as business records because the People failed to establish that they were prepared contemporaneously with or within a short time of the events described therein is not preserved for our review. The objection by defendant to "the admission of that exhibit did not encompass [her] present contention" ( People v. Evans , 59 A.D.3d 1127, 1128, 872 N.Y.S.2d 840 [4th Dept. 2009], lv denied 12 N.Y.3d 815, 881 N.Y.S.2d 23, 908 N.E.2d 931 [2009] ; see generally CPL 470.05 [2] ). In any event, we reject that contention inasmuch as the requisite foundation for admission of exhibit 17 as a business record was established (see generally People v. Brown , 13 N.Y.3d 332, 341, 890 N.Y.S.2d 415, 918 N.E.2d 927 [2009] ; People v. Cratsley , 86 N.Y.2d 81, 89-91, 629 N.Y.S.2d 992, 653 N.E.2d 1162 [1995] ). Contrary to defendant's further contention, that exhibit was properly admitted as a business record notwithstanding that the People did not call the person who created that document as a witness at defendant's trial (see People v. Nashal , 130 A.D.3d 480, 481, 13 N.Y.S.3d 396 [1st Dept. 2015], lv denied 26 N.Y.3d 1010, 20 N.Y.S.3d 550, 42 N.E.3d 220 [2015] ; see e.g. People v. Darden , 142 A.D.3d 863, 864, 38 N.Y.S.3d 149 [1st Dept. 2016], lv denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017] ; see generally People v. Kennedy , 68 N.Y.2d 569, 579-580, 510 N.Y.S.2d 853, 503 N.E.2d 501 [1986] ).
With respect to defendant's contention that the court erred in admitting exhibit 18 in evidence, we conclude that "the court did not err in allowing the prosecution to introduce summaries of other documents that had been introduced into evidence and previously provided to the defense, pursuant to the voluminous writings exception to the best evidence rule" ( People v. Hutchings , 142 A.D.3d 1292, 1294, 38 N.Y.S.3d 863 [4th Dept. 2016], lv denied 28 N.Y.3d 1124, 51 N.Y.S.3d 21, 73 N.E.3d 361 [2016] [internal quotation marks omitted]; see generally People v. Potter , 255 A.D.2d 763, 767, 682 N.Y.S.2d 238 [3d Dept. 1998] ).
We reject defendant's further contention that, because she was questioned without Miranda warnings by a Department of Labor Investigator, the court erred in refusing to suppress the statement that she made to him. Even were we to assume that the Investigator was acting as an agent of the police (cf. generally People v. Rodriguez , 135 A.D.3d 1181, 1184-1185, 23 N.Y.S.3d 692 [3d Dept. 2016], lv denied 28 N.Y.3d 936, 40 N.Y.S.3d 364, 63 N.E.3d 84 [2016] ), it is well settled that "the safeguards required by Miranda are not triggered unless a suspect is subject to custodial interrogation ... [and t]he standard for assessing a suspect's custodial status is whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave" ( People v. Paulman , 5 N.Y.3d 122, 129, 800 N.Y.S.2d 96, 833 N.E.2d 239 [2005] [internal quotation marks omitted]; see 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] ; People v. Figueroa , 156 A.D.3d 1348, 1348, 68 N.Y.S.3d 290 [4th Dept. 2017], lv denied 31 N.Y.3d 1013, 78 N.Y.S.3d 283, 102 N.E.3d 1064 [2018] ). Here, we conclude that defendant was not in custody at the time she spoke to the Investigator, and thus Miranda warnings were not required (see People v. Rodriguez , 111 A.D.3d 1333, 1333-1334, 974 N.Y.S.2d 827 [4th Dept. 2013], lv denied 22 N.Y.3d 1158, 984 N.Y.S.2d 642, 7 N.E.3d 1130 [2014] ; People v. Murphy , 43 A.D.3d 1276, 1277, 842 N.Y.S.2d 839 [4th Dept. 2007], lv denied 9 N.Y.3d 1008, 850 N.Y.S.2d 396, 880 N.E.2d 882 [2007] ).
Contrary to defendant's contention, after 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] ), including with respect to the element of defendant's intent to defraud (see People v. Daymon , 156 A.D.3d 1417, 1417, 65 N.Y.S.3d 824 [4th Dept. 2017], lv denied 31 N.Y.3d 983, 77 N.Y.S.3d 660, 102 N.E.3d 437 [2018] ; People v. Pettersen , 130 A.D.3d 1536, 1537, 14 N.Y.S.3d 255 [4th Dept. 2015], lv denied 26 N.Y.3d 1010, 20 N.Y.S.3d 551, 42 N.E.3d 221 [2015] ; see generally People v. Taylor , 14 N.Y.3d 727, 729, 900 N.Y.S.2d 237, 926 N.E.2d 591 [2010] ).
Finally, the sentence is not unduly harsh or severe.