Opinion
708 KA 22-00187
10-06-2023
The PEOPLE of the State of New York, Respondent, v. Kelly L. ANDERSON, Defendant-Appellant.
CAMBARERI & BRENNECK, SYRACUSE (MELISSA K. SWARTZ OF COUNSEL), FOR DEFENDANT-APPELLANT. TODD J. CASELLA, DISTRICT ATTORNEY, PENN YAN, FOR RESPONDENT.
CAMBARERI & BRENNECK, SYRACUSE (MELISSA K. SWARTZ OF COUNSEL), FOR DEFENDANT-APPELLANT.
TODD J. CASELLA, DISTRICT ATTORNEY, PENN YAN, FOR RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, BANNISTER, OGDEN, AND NOWAK, 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 murder in the second degree ( Penal Law § 125.25 [1] ), stemming from the asphyxiation death of her 16-month-old son (victim). We affirm.
Viewing the 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 the evidence "is legally sufficient [inasmuch as] there is [a] valid line of reasoning and permissible inferences that could lead a rational person to conclude that every element of the charged crime has been proven beyond a reasonable doubt,"—including defendant's identity as the person who intentionally caused the victim's death ( People v. Delamota , 18 N.Y.3d 107, 113, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ). Furthermore, 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 People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Although a different verdict would not have been unreasonable, we cannot conclude that the jury "failed to give the evidence the weight it should be accorded" ( id. ). To the extent there was conflicting testimony, we conclude that it merely "presented an issue of credibility for the jury to resolve" ( People v. Boyd , 153 A.D.3d 1608, 1609, 61 N.Y.S.3d 431 [4th Dept. 2017], lv denied 30 N.Y.3d 1103, 77 N.Y.S.3d 2, 101 N.E.3d 388 [2018] [internal quotation marks omitted]; see generally People v. Lane , 7 N.Y.3d 888, 890, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006] ; People v. Garrow , 171 A.D.3d 1542, 1550, 99 N.Y.S.3d 827 [4th Dept. 2019], lv denied 34 N.Y.3d 931, 109 N.Y.S.3d 752, 133 N.E.3d 459 [2019] ).
Defendant contends that County Court erred in admitting in evidence recordings of wiretapped telephone calls, obtained by means of an eavesdropping warrant, on the grounds that their admission infringed on her constitutional rights. As defendant concedes, however, that contention is unpreserved for our review (see CPL 470.05 [2] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Defendant likewise failed to preserve her contention that the court erred in admitting in evidence certain statements that she made to the police that were not included in the pretrial CPL 710.30 notice (see CPL 470.05 [2] ; People v. Hernandez , 192 A.D.3d 1505, 1506, 140 N.Y.S.3d 835 [4th Dept. 2021], lv denied 37 N.Y.3d 957, 147 N.Y.S.3d 528, 170 N.E.3d 402 [2021] ; see generally People v. Nickerson , 75 N.Y.2d 883, 884, 554 N.Y.S.2d 473, 553 N.E.2d 1021 [1990] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Defendant also contends that the court, in making its Molineux ruling, erred in admitting in evidence testimony regarding defendant's alleged prior abuse of the victim because that abuse was not established by clear and convincing evidence. We conclude that defendant failed to preserve that particular aspect of her Molineux contention for our review (see CPL 470.05 [2] ; see generally People v. Robinson , 68 N.Y.2d 541, 544-545, 547-548, 510 N.Y.S.2d 837, 503 N.E.2d 485 [1986] ; People v. Larkins , 108 A.D.3d 1210, 1211-1212, 969 N.Y.S.2d 700 [4th Dept. 2013], lv denied 23 N.Y.3d 1022, 992 N.Y.S.2d 804, 16 N.E.3d 1284 [2014] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
To the extent that defendant further contends that she was unduly prejudiced by the court's Molineux ruling, we conclude that the court properly determined that the probative value of the challenged evidence outweighed its prejudicial effect (see generally People v. Chavis , 218 A.D.3d 1368, 1370, 194 N.Y.S.3d 393 [4th Dept. 2023] ). Here, the charged crime "occurred in the privacy of the home and the facts are not easily unraveled" ( People v. Hall , 182 A.D.3d 1023, 1024, 123 N.Y.S.3d 335 [4th Dept. 2020], lv denied 35 N.Y.3d 1045, 127 N.Y.S.3d 842, 151 N.E.3d 523 [2020] [internal quotation marks omitted]; see People v. Riley , 23 A.D.3d 1077, 1077, 805 N.Y.S.2d 215 [4th Dept. 2005], lv denied 6 N.Y.3d 817, 812 N.Y.S.2d 457, 845 N.E.2d 1288 [2006] ). Moreover, the testimony about the prior abuse was relevant to controvert defendant's theory that the victim's death was medically-related and not due to her own intentional actions (see People v. Majors , 291 A.D.2d 927, 928, 737 N.Y.S.2d 743 [4th Dept. 2002], affd 100 N.Y.2d 567, 764 N.Y.S.2d 234, 795 N.E.2d 1243 [2003] ; Riley , 23 A.D.3d at 1077, 805 N.Y.S.2d 215 ; People v. Holloway , 185 A.D.2d 646, 647, 586 N.Y.S.2d 172 [4th Dept. 1992], lv denied 80 N.Y.2d 1027, 592 N.Y.S.2d 677, 607 N.E.2d 824 [1992] ). We note that the court minimized the prejudicial effect of the Molineux testimony by providing appropriate limiting instructions to the jury (see Hall , 182 A.D.3d at 1024, 123 N.Y.S.3d 335 ; People v. Vega , 3 A.D.3d 239, 247, 771 N.Y.S.2d 30 [1st Dept. 2004], lv denied 2 N.Y.3d 766, 778 N.Y.S.2d 784, 811 N.E.2d 46 [2004] ).
We reject defendant's contention that she was deprived of effective assistance of counsel based on several acts or omissions on the part of defense counsel throughout the underlying proceedings. Defendant contends that defense counsel was ineffective for failing to seek preclusion of certain intercepted telephone calls in which defendant and others referenced defendant's right to counsel and right to silence. We conclude, however, that defendant failed to establish the absence of strategic reasons for defense counsel's failure to seek preclusion of that evidence. Defense counsel attempted to portray defendant in a sympathetic light, and the intercepted telephone calls—none of which was directly incriminating—arguably presented defendant as an innocent, distraught, and confused mother who understandably gave inconsistent accounts about the morning her son died (see People v. Sposito , 193 A.D.3d 1236, 1239, 147 N.Y.S.3d 195 [3d Dept. 2021], affd 37 N.Y.3d 1149, 159 N.Y.S.3d 753, 180 N.E.3d 1053 [2022] ; see generally People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; People v. Smith , 61 A.D.2d 91, 99, 401 N.Y.S.2d 353 [4th Dept. 1978] ). Indeed, defense counsel's argument on summation emphasized that clips from those conversations were strung together to make defendant appear guilty but that there were innocent explanations for any seemingly incriminating statements. To the extent that those telephone calls contained statements made by defendant from which her guilt could be inferred—i.e., party admissions—defense counsel was not ineffective for failing to make a motion that had "little or no chance of success" ( People v. Stultz , 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004], rearg denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 [2004] ; see People v. Chico , 90 N.Y.2d 585, 589, 665 N.Y.S.2d 5, 687 N.E.2d 1288 [1997] ). Defendant also contends that defense counsel was ineffective in failing to seek preclusion of statements she made to the police that were not properly noticed pursuant to CPL 710.30. We conclude that defense counsel was not ineffective in that regard inasmuch as a motion to preclude the statements on that basis had little or no chance of success (see Stultz , 2 N.Y.3d at 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 ). Specifically, we note that there is no allegation that the challenged statements to the police were involuntarily made by defendant, which is fatal to any argument that preclusion was warranted for a violation of CPL 710.30 (see generally People v. Chase , 85 N.Y.2d 493, 500, 626 N.Y.S.2d 721, 650 N.E.2d 379 [1995] ; People v. Stewart , 160 A.D.2d 966, 966, 554 N.Y.S.2d 687 [2d Dept. 1990] ).
Defendant also contends that defense counsel was ineffective in failing to seek review of the eavesdropping warrant that led to interception of defendant's telephone conversations. We reject that contention because such a challenge would have had little or no chance of success on the merits (see Stultz , 2 N.Y.3d at 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 ; People v. Smith , 145 A.D.3d 1631, 1632, 44 N.Y.S.3d 838 [4th Dept. 2016], lv denied 29 N.Y.3d 1086, 64 N.Y.S.3d 176, 86 N.E.3d 263 [2017] ). Contrary to defendant's argument, "[t]o satisfy the requirements for issuance of an eavesdropping warrant set forth in CPL 700.15 (4) and 700.20 (2) (d), the applicant need not make a showing that every conceivable method of investigation has been tried and failed" ( People v. Brown , 233 A.D.2d 764, 765, 650 N.Y.S.2d 836 [3d Dept. 1996], lv denied 89 N.Y.2d 1009, 658 N.Y.S.2d 247, 680 N.E.2d 621 [1997] ). In our view, the People adequately established entitlement to an eavesdropping warrant because of "the nature and progress of the investigation and ... the difficulties inherent in the use of normal law enforcement methods" ( id. [internal quotation marks omitted]; see People v. Cruz , 134 A.D.3d 1455, 1456, 22 N.Y.S.3d 728 [4th Dept. 2015], lv denied 27 N.Y.3d 1067, 38 N.Y.S.3d 838, 60 N.E.3d 1204 [2016] ; People v. Moon , 168 A.D.2d 110, 112-113, 571 N.Y.S.2d 580 [3d Dept. 1991], lv denied 78 N.Y.2d 1078, 577 N.Y.S.2d 242, 583 N.E.2d 954 [1991] ).
Defendant failed to demonstrate the absence of "strategic or other legitimate explanations" ( Benevento , 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ) for defense counsel's failure to request a hearing pursuant to People v. Singer , 44 N.Y.2d 241, 405 N.Y.S.2d 17, 376 N.E.2d 179 (1978) to challenge the preindictment delay. In that part of the omnibus motion seeking to dismiss the indictment on speedy trial grounds, defense counsel sought dismissal of the indictment due to the preindictment delay in this case, citing Singer and People v. Taranovich , 37 N.Y.2d 442, 373 N.Y.S.2d 79, 335 N.E.2d 303 (1975) and arguing that the lengthy delay was due to the People's negligence, that the People failed to show good cause for the delay, and that there was no new evidence developed in the case beyond the wiretapped telephone conversations. In light of the court's summary denial of that part of the omnibus motion, we cannot conclude that defense counsel was ineffective in failing to press for a hearing on the issue of preindictment delay (see Stultz , 2 N.Y.3d at 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 ). We further note that it is unlikely that defendant would have prevailed at a Singer hearing inasmuch as the only factor that weighed in her favor was the extent of the preindictment delay (see generally People v. Decker , 13 N.Y.3d 12, 14-15, 884 N.Y.S.2d 662, 912 N.E.2d 1041 [2009] ; Taranovich , 37 N.Y.2d at 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 ; People v. Pilmar , 193 A.D.3d 467, 467, 141 N.Y.S.3d 706 [1st Dept. 2021], lv denied 37 N.Y.3d 967, 148 N.Y.S.3d 759, 171 N.E.3d 235 [2021] ).
Defendant's remaining claims of ineffective assistance are without merit. Viewing the evidence, the law, and the circumstances of the case in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally Benevento , 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Defendant further contends that the court abused its discretion in refusing to recuse itself. We reject that contention. " ‘[U]nless disqualification is required under Judiciary Law § 14, a judge's decision on a recusal motion is one of discretion’ " ( People v. Hazzard , 129 A.D.3d 1598, 1598, 12 N.Y.S.3d 415 [4th Dept. 2015], lv denied 26 N.Y.3d 968, 18 N.Y.S.3d 604, 40 N.E.3d 582 [2015] ). "[W]hen recusal is sought based upon ‘impropriety as distinguished from legal disqualification, the judge ... is the sole arbiter’ " ( People v. Moreno , 70 N.Y.2d 403, 406, 521 N.Y.S.2d 663, 516 N.E.2d 200 [1987] ). Here, defendant did not allege a disqualification and made no showing that the court displayed actual bias (see People v. Sides , 215 A.D.3d 1250, 1252, 188 N.Y.S.3d 299 [4th Dept. 2023], lv denied 40 N.Y.3d 936, 194 N.Y.S.3d 771, 775, 215 N.E.3d 1212, 1216 [2023]; People v. McCray , 121 A.D.3d 1549, 1551, 993 N.Y.S.2d 413 [4th Dept. 2014], lv denied 25 N.Y.3d 1204, 16 N.Y.S.3d 526, 37 N.E.3d 1169 [2015] ), and we conclude that the court did not abuse its discretion in denying defendant's request (cf. People v. Roshia , 206 A.D.3d 1057, 1057-1058, 169 N.Y.S.3d 400 [3d Dept. 2022] ).
We further conclude that defendant failed to "establish that [s]he was denied a fair trial by alleged cumulative errors of defense counsel, the prosecutor and the court" ( People v. Williams , 273 A.D.2d 824, 826, 710 N.Y.S.2d 214 [4th Dept. 2000], lv denied 95 N.Y.2d 893, 715 N.Y.S.2d 386, 738 N.E.2d 790 [2000] ; see People v. Neil , 188 A.D.3d 1765, 1767, 132 N.Y.S.3d 711 [4th Dept. 2020], lv denied 36 N.Y.3d 1058, 141 N.Y.S.3d 774, 165 N.E.3d 700 [2021] ).
Finally, we reject defendant's contention that the sentence is unduly harsh and severe.