Opinion
622 KA 22-00806
11-17-2023
The PEOPLE of the State of New York, Respondent, v. M. Robert NEULANDER, Defendant-Appellant.
SHAPIRO ARATO BACH LLP, NEW YORK CITY (ALEXANDRA A.E. SHAPIRO OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT. PAUL SKIP LAISURE, GARDEN CITY, FOR NEW YORK STATE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, AMICUS CURIAE.
SHAPIRO ARATO BACH LLP, NEW YORK CITY (ALEXANDRA A.E. SHAPIRO OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PAUL SKIP LAISURE, GARDEN CITY, FOR NEW YORK STATE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, AMICUS CURIAE.
PRESENT: LINDLEY, J.P., CURRAN, MONTOUR, GREENWOOD, AND DELCONTE, 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, following the reversal of his prior judgment of conviction and a retrial ( People v. Neulander , 162 A.D.3d 1763, 80 N.Y.S.3d 791 [4th Dept. 2018], affd 34 N.Y.3d 110, 111 N.Y.S.3d 259, 135 N.E.3d 302 [2019] ), of murder in the second degree ( Penal Law § 125.25 [1] ) and tampering with physical evidence (§ 215.40 [2]). We affirm.
Defendant first contends that the evidence is legally insufficient and the verdict is against the weight of the evidence. We reject that contention. "It is well settled that, even in circumstantial evidence cases, the standard for appellate review of legal sufficiency issues is ‘whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the [jury] on the basis of the evidence at trial, viewed in the light most favorable to the People’ " ( People v. Hines , 97 N.Y.2d 56, 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], quoting People v. Williams , 84 N.Y.2d 925, 926, 620 N.Y.S.2d 811, 644 N.E.2d 1367 [1994] ).
Here, the evidence establishes that the victim, defendant's wife, died of a complex, comminuted skull fracture. The People introduced the testimony of several expert witnesses who opined that the victim's head injury was caused by multiple blows consistent with a homicide, and that her injuries were inconsistent with a simple fall. The People also introduced evidence of blood splatter and tissue that had been found around the victim's bed, consistent with the People's theory that the victim had been killed in the bedroom and then moved to the bathroom. In addition, testimony from the housekeeper that the sheets on the victim's bed had been recently changed and that a bed pillow was missing, coupled with evidence that defendant moved the victim's body, supported the inference that defendant was acting to conceal evidence of the crime. Viewing that evidence in the light most favorable to the People, as we must (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that there is a "valid line of reasoning and permissible inferences" from which the jury could find that defendant murdered his wife and then concealed evidence of that crime ( Williams , 84 N.Y.2d at 926, 620 N.Y.S.2d 811, 644 N.E.2d 1367 ).
Furthermore, 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 reject defendant's contention that the verdict is 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] ). Here, "[t]he jury was presented with conflicting expert testimony regarding the cause of death, and the record supports its decision to credit the People's expert testimony" ( People v. Fields , 16 A.D.3d 142, 142, 789 N.Y.S.2d 888 [1st Dept. 2005], lv denied 4 N.Y.3d 886, 798 N.Y.S.2d 731, 831 N.E.2d 976 [2005] ).
Defendant next contends that County Court erred in granting the People's request for a missing witness instruction with respect to defendant's daughter inasmuch as she did not have direct knowledge regarding any of the issues on which defendant presented evidence. We reject that contention. A " ‘missing witness’ instruction allows a jury to draw an unfavorable inference based on a party's failure to call a witness who would normally be expected to support that party's version of events" ( People v. Savinon , 100 N.Y.2d 192, 196, 761 N.Y.S.2d 144, 791 N.E.2d 401 [2003] ). "[T]he instruction rests on the commonsense notion that the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party's cause" ( id. [internal quotation marks omitted]; see People v. Gonzalez , 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583 [1986] ).
"The proponent [of a missing witness instruction] initially must demonstrate only three things via a prompt request for the charge: (1) ‘that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case,’ (2) ‘that such witness can be expected to testify favorably to the opposing party,’ and (3) ‘that such party has failed to call’ the witness to testify" ( People v. Smith , 33 N.Y.3d 454, 458-459, 104 N.Y.S.3d 572, 128 N.E.3d 649 [2019], quoting Gonzalez , 68 N.Y.2d at 427, 509 N.Y.S.2d 796, 502 N.E.2d 583 ). Defendant did not call his daughter as a witness, and he concedes in his reply brief that his daughter "possessed material, non-cumulative knowledge regarding the case [and] that she was available and would be expected to testify favorably to him." We therefore conclude that the court did not abuse its discretion in giving the missing witness instruction (see People v. Macana , 84 N.Y.2d 173, 179-180, 615 N.Y.S.2d 656, 639 N.E.2d 13 [1994] ). Contrary to defendant's contention, where, as here, a criminal defendant elects to either testify or "otherwise come forward with evidence at trial," a missing witness instruction may be given for any uncalled witness with knowledge of any material issue ( id. at 177, 615 N.Y.S.2d 656, 639 N.E.2d 13 ).
Defendant failed to preserve his contention that the missing witness instruction was impermissibly broad and should have been limited to a statement that the jury may infer that, if his daughter had been called as a witness, she would not have supported the defense testimony on the issue of which she possessed knowledge, and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see People v. Davis , 133 A.D.3d 911, 914, 20 N.Y.S.3d 191 [3d Dept. 2015] ; see generally CPL 470.15 [6] [a] ). To the extent defendant contends that the law governing the application of the missing witness instruction against criminal defendants should be changed, "it is not this Court's prerogative to overrule or disregard a precedent of the Court of Appeals" ( Calcano v. Rodriguez , 91 A.D.3d 468, 469, 936 N.Y.S.2d 185 [1st Dept. 2012] ).
Defendant further contends that the court erred by allowing the People to introduce expert testimony with respect to the victim's cause of death that was based, in part, on nonmedical evidence, including blood splatter evidence and other investigative information. We reject that contention. It is not error for a court to admit in evidence expert testimony on cause of death that is based, in part, on nonmedical evidence (see generally People v. Ramsaran , 154 A.D.3d 1051, 1055, 62 N.Y.S.3d 555 [3d Dept. 2017], lv denied 30 N.Y.3d 1063, 71 N.Y.S.3d 13, 94 N.E.3d 495 [2017] ; People v. Forsha , 151 A.D.2d 875, 876, 542 N.Y.S.2d 847 [3d Dept. 1989], lv denied 74 N.Y.2d 809, 546 N.Y.S.2d 567, 545 N.E.2d 881 [1989] ), so long as the opinion is also based, in part, "on professional or medical knowledge" ( People v. Eberle , 265 A.D.2d 881, 881, 697 N.Y.S.2d 218 [4th Dept. 1999] ).
Defendant also contends that he was denied a fair trial through numerous acts of prosecutorial misconduct, including improper cross-examination and editorializing to the jury. Contrary to defendant's contention, the prosecutor had "some reasonable basis for believing the truth of things he was asking about" in his cross-examination of defendant's expert witness ( People v. Alamo , 23 N.Y.2d 630, 633, 298 N.Y.S.2d 681, 246 N.E.2d 496 [1969], cert denied 396 U.S. 879, 90 S.Ct. 156, 24 L.Ed.2d 137 [1969] ; see People v. Rouse , 34 N.Y.3d 269, 277, 117 N.Y.S.3d 634, 140 N.E.3d 957 [2019] ). Moreover, although the prosecutor made a number of extraneous comments during the trial, "the court sustained defendant's objection[s] and gave curative instructions [where necessary], thereby alleviating any possible prejudice" ( People v. Marzug , 280 A.D.2d 974, 975, 721 N.Y.S.2d 220 [4th Dept. 2001], lv denied 96 N.Y.2d 904, 730 N.Y.S.2d 801, 756 N.E.2d 89 [2001] ; see People v. Chizor , 190 A.D.3d 763, 763, 135 N.Y.S.3d 859 [2d Dept. 2021], lv denied 37 N.Y.3d 954, 147 N.Y.S.3d 547, 170 N.E.3d 421 [2021] ). Further, the evidence against defendant was overwhelming and "without the [challenged] conduct[,] the same result would undoubtedly have been reached" ( People v. Mott , 94 A.D.2d 415, 419, 465 N.Y.S.2d 307 [4th Dept. 1983] ), and we therefore conclude that the alleged improprieties "[did] not substantially prejudice[ ] ... defendant's trial" ( People v. Galloway , 54 N.Y.2d 396, 401, 446 N.Y.S.2d 9, 430 N.E.2d 885 [1981] ).
Finally, contrary to defendant's contention, we conclude that the sentence is not unduly harsh or severe.