Opinion
750 KA 19-00529
11-12-2021
The PEOPLE of the State of New York, Respondent, v. Pande TRIFUNOVSKI, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, 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 him, upon a jury verdict, of murder in the second degree ( Penal Law § 125.25 [1] ) for killing his wife. Contrary to defendant's contention, County Court did not err in refusing to suppress his statements to the police. We conclude that the record of the suppression hearing, including the video of defendant's police interview, "supports the court's determination that defendant knowingly, voluntarily and intelligently waived his Miranda rights before making [his] statement[s]" to the police ( People v. Case , 150 A.D.3d 1634, 1638, 54 N.Y.S.3d 475 [4th Dept. 2017] [internal quotation marks omitted]). The video of the police interview also belies defendant's contention that he did not understand his Miranda rights because of a language barrier. To the extent that defendant further contends that he invoked his right to remain silent, we reject that contention. Defendant did not "clearly communicate a desire to cease all questioning indefinitely" ( People v. Flowers , 122 A.D.3d 1396, 1397, 996 N.Y.S.2d 458 [4th Dept. 2014], lv denied 24 N.Y.3d 1219, 4 N.Y.S.3d 607, 28 N.E.3d 43 [2015] [internal quotation marks omitted]; see People v. Ware , 159 A.D.3d 1401, 1402, 72 N.Y.S.3d 676 [4th Dept. 2018], lv denied 31 N.Y.3d 1122, 81 N.Y.S.3d 382, 106 N.E.3d 765 [2018] ; People v. Lowin , 36 A.D.3d 1153, 1155, 827 N.Y.S.2d 782 [3d Dept. 2007], lv denied 9 N.Y.3d 847, 840 N.Y.S.2d 773, 872 N.E.2d 886 [2007], reconsideration denied 9 N.Y.3d 878, 842 N.Y.S.2d 790, 874 N.E.2d 757 [2007] ). Rather, the record establishes that, after defendant asked if it was possible to continue the interview the next day, he continued to participate in the conversation with the police (see generally Flowers , 122 A.D.3d at 1397, 996 N.Y.S.2d 458 ). Under these circumstances, we conclude that defendant did not unequivocally exercise his right to remain silent, and that his statements were not rendered involuntary when the police continued to question him. "[T]he totality of the circumstances here does not ‘bespeak such a serious disregard of defendant's rights, and [was not] so conducive to unreliable and involuntary statements, that the prosecutor has not demonstrated beyond a reasonable doubt that the defendant's will was not overborne’ " ( People v. Jin Cheng Lin , 26 N.Y.3d 701, 725, 27 N.Y.S.3d 439, 47 N.E.3d 718 [2016], quoting People v. Holland , 48 N.Y.2d 861, 863, 424 N.Y.S.2d 351, 400 N.E.2d 293 [1979] ).
Defendant next contends that the evidence is not legally sufficient to support the conviction because the People failed to establish that he killed his wife intentionally. We reject that contention. "Intent to kill may be inferred from defendant's conduct as well as the circumstances surrounding the crime" ( People v. McDonald , 172 A.D.3d 1900, 1901-1902, 100 N.Y.S.3d 462 [4th Dept. 2019] [internal quotation marks omitted]). In this case, "there is a valid line of reasoning and permissible inferences from which a rational jury could have found" that defendant intended to kill his wife ( People v. Steinberg , 79 N.Y.2d 673, 682, 584 N.Y.S.2d 770, 595 N.E.2d 845 [1992] ). Defendant repeatedly struck his wife in the head with a piece of wood and strangled her (see People v. Hough , 151 A.D.3d 1591, 1593, 57 N.Y.S.3d 780 [4th Dept. 2017], lv denied 30 N.Y.3d 950, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017] ), and he also took measures to conceal the evidence of his conduct (see People v. Morgan , 38 A.D.3d 1329, 1329, 832 N.Y.S.2d 345 [4th Dept. 2007], lv denied 8 N.Y.3d 988, 838 N.Y.S.2d 491, 869 N.E.2d 667 [2007] ). To the extent that defendant further contends that the evidence is legally insufficient to support the conviction because he established the defense of extreme emotional disturbance by a preponderance of the evidence, defendant failed to preserve that contention for our review (see People v. Martin-Brown , 156 A.D.3d 1392, 1393, 65 N.Y.S.3d 858 [4th Dept. 2017], lv denied 31 N.Y.3d 985, 77 N.Y.S.3d 663, 102 N.E.3d 440 [2018], reconsideration denied 31 N.Y.3d 1084, 79 N.Y.S.3d 106, 103 N.E.3d 1253 [2018] ; People v. Ashline , 124 A.D.3d 1258, 1260, 3 N.Y.S.3d 469 [4th Dept. 2015], lv denied 27 N.Y.3d 1128, 39 N.Y.S.3d 109, 61 N.E.3d 508 [2016] ). In any event, we conclude that the contention is without merit (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Additionally, 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 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 ).
Defendant failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct during the opening statement (see People v. Bagley , 194 A.D.3d 1475, 1477, 147 N.Y.S.3d 297 [4th Dept. 2021], lv denied 37 N.Y.3d 990, 152 N.Y.S.3d 395, 174 N.E.3d 335 [2021] ; People v. Vick , 173 A.D.3d 1776, 1777, 102 N.Y.S.3d 841 [4th Dept. 2019], lv denied 34 N.Y.3d 955, 110 N.Y.S.3d 636, 134 N.E.3d 635 [2019] ). In any event, we conclude that "[t]he prosecutor's comments during his opening statement were, while perhaps theatrical, properly framed in terms of what the [witnesses] would testify to and did not distort the evidence or otherwise prejudice defendant" ( Vick , 173 A.D.3d at 1777, 102 N.Y.S.3d 841 [internal quotation marks omitted]). We reject defendant's further contention that he was deprived of effective assistance of counsel. The prosecutor's comments during his opening statement were "not sufficiently egregious to deprive defendant of a fair trial; as such, it cannot be said that defense counsel was ineffective for failing to object to [them]" ( People v. Linder , 170 A.D.3d 1555, 1560, 95 N.Y.S.3d 681 [4th Dept. 2019], lv denied 33 N.Y.3d 1071, 105 N.Y.S.3d 12, 129 N.E.3d 332 [2019] ). We further conclude that defendant otherwise received meaningful representation (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Contrary to defendant's contention, we conclude that the sentence is not unduly harsh or severe. Finally, to the extent that defendant further contends that he was penalized for exercising his right to a jury trial and that the court should have exercised its discretion to sentence him pursuant to Penal Law § 60.12, those contentions are unpreserved for our review (see People v. Jacobs , 195 A.D.3d 1434, 1435, 145 N.Y.S.3d 502 [4th Dept. 2021] ; People v. Elmore , 195 A.D.3d 1575, 1576-1577, 145 N.Y.S.3d 913 [4th Dept. 2021], lv denied 37 N.Y.3d 1026, 153 N.Y.S.3d 419, 175 N.E.3d 444 [2021] ; People v. Smalls , 128 A.D.3d 1229, 1230, 9 N.Y.S.3d 700 [3d Dept. 2015], lv denied 27 N.Y.3d 1006, 38 N.Y.S.3d 115, 59 N.E.3d 1227 [2016], reconsideration denied 27 N.Y.3d 1155, 39 N.Y.S.3d 389, 62 N.E.3d 129 [2016], cert denied ––– US ––––, 137 S.Ct. 498, 196 L.Ed.2d 411 [2016] ).