Opinion
1198 KA 17–01328
03-13-2020
The PEOPLE of the State of New York, Respondent, v. Kyle A. BOX, Defendant–Appellant.
DANIELLE C. WILD, ROCHESTER, FOR DEFENDANT–APPELLANT. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN, FOR RESPONDENT.
DANIELLE C. WILD, ROCHESTER, FOR DEFENDANT–APPELLANT.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN, FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law and the facts by reversing those parts convicting defendant of arson in the third degree, reckless endangerment in the first degree, grand larceny in the fourth degree, and criminal possession of stolen property in the fourth degree and dismissing counts four, five, eight, and nine of the indictment, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree ( Penal Law § 125.25[1] ), assault in the first degree (§ 120.10[1] ), arson in the second degree (§ 150.15), arson in the third degree (§ 150.10[1] ), reckless endangerment in the first degree (§ 120.25), grand larceny in the fourth degree (§ 155.30[8] ), criminal possession of stolen property in the fourth degree (§ 165.45[5] ), and two counts of tampering with physical evidence (§ 215.40[2] ). Defendant's conviction stems from his conduct in stabbing the victim 46 times in the victim's home, setting fire to the house, and then stealing the victim's vehicle. Defendant gave a statement to the police admitting that he stabbed the victim, but claimed he did so in self-defense. Defendant also pursued an extreme emotional disturbance (EED) affirmative defense during the trial.
We reject defendant's contention that County Court erred in refusing to suppress his statements to the police. Prior to the Miranda warnings being given, defendant was not in custody. He voluntarily accompanied the police during their investigation of the crime and then to the police station, and the questioning was primarily investigatory, not accusatory (see People v. Towsley, 53 A.D.3d 1083, 1084, 862 N.Y.S.2d 236 [4th Dept. 2008], lv denied 11 N.Y.3d 795, 866 N.Y.S.2d 621, 896 N.E.2d 107 [2008] ; People v. Duda, 45 A.D.3d 1464, 1466, 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] ). We conclude that a reasonable person, innocent of any crime, would not have believed that he or she was in custody (see generally 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] ). Shortly after arriving at the police station, the police learned of evidence connecting defendant to the crime and thus advised defendant of his Miranda rights, which defendant waived, prior to interrogating defendant. Contrary to defendant's further contentions, the detective's statements prior to issuing the Miranda warnings did not vitiate or neutralize the effect of the warnings (cf. People v. Dunbar, 24 N.Y.3d 304, 315–316, 998 N.Y.S.2d 679, 23 N.E.3d 946 [2014], cert. denied ––– U.S. ––––, 135 S. Ct. 2052, 191 L.Ed.2d 971 [2015] ), and the police did not engage in tactics that were so fundamentally unfair as to render the statements involuntary (see People v. Wolfe, 103 A.D.3d 1031, 1035, 962 N.Y.S.2d 403 [3d Dept. 2013], lv denied 21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013] ; see generally People v. Brown, 111 A.D.3d 1385, 1386, 975 N.Y.S.2d 293 [4th Dept. 2013], lv denied 22 N.Y.3d 1155, 984 N.Y.S.2d 638, 7 N.E.3d 1126 [2014] ).
Defendant contends that the verdict finding him guilty of murder in the second degree, assault in the first degree, arson in the second degree, reckless endangerment in the first degree, grand larceny in the fourth degree, and criminal possession of stolen property in the fourth degree is against the weight of the evidence. Addressing first the counts of murder in the second degree and assault in the first degree, upon our independent review of the evidence in light of the elements of those crimes as charged to the jury, as well as the charge with respect to the defense of justification and the EED affirmative defense (see generally 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 (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). The jury's rejection of the justification defense with respect to the counts of murder in the second degree and assault in the first degree is not against the weight of the evidence inasmuch as the weight of the evidence supports a determination that defendant lacked a subjective belief that his use of deadly physical force was necessary to protect himself against the victim's use or imminent use of deadly physical force or a forcible criminal sexual act, or that a reasonable person in the same situation would not have perceived that deadly force was necessary (see generally People v. Umali, 10 N.Y.3d 417, 425, 859 N.Y.S.2d 104, 888 N.E.2d 1046 [2008], rearg. denied 11 N.Y.3d 744, 864 N.Y.S.2d 386, 894 N.E.2d 651 [2008], cert. denied 556 U.S. 1110, 129 S.Ct. 1595, 173 L.Ed.2d 685 [2009] ; People v. Burman, 173 A.D.3d 1727, 1730, 102 N.Y.S.3d 849 [4th Dept. 2019] ; People v. Ford, 114 A.D.3d 1273, 1274–1275, 980 N.Y.S.2d 219 [4th Dept. 2014], lv denied 23 N.Y.3d 962, 988 N.Y.S.2d 569, 11 N.E.3d 719 [2014] ). The jury's rejection of the EED affirmative defense is also not contrary to the weight of the evidence (see People v. Steen, 107 A.D.3d 1608, 1608, 967 N.Y.S.2d 572 [4th Dept. 2013], lv denied 22 N.Y.3d 959, 977 N.Y.S.2d 190, 999 N.E.2d 555 [2013] ), especially considering defendant's conduct after the stabbing occurred.
We further conclude that the jury's verdict with respect to arson in the second degree 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 ). "A person is guilty of arson in the second degree when he [or she] intentionally damages a building ... by starting a fire, and when (a) another person who is not a participant in the crime is present in such building ... at the time, and (b) the defendant knows that fact or the circumstances are such as to render the presence of such a person therein a reasonable possibility" ( Penal Law § 150.15 ). "[T]he definition of person contemplates a living human being," and thus section 150.15 requires that such a person be alive when the fire is started ( People v. Taylor, 158 A.D.3d 1095, 1103, 72 N.Y.S.3d 256 [4th Dept. 2018], lv denied 32 N.Y.3d 941, 84 N.Y.S.3d 868, 109 N.E.3d 1168 [2018], reconsideration denied 32 N.Y.3d 1178, 97 N.Y.S.3d 616, 121 N.E.3d 243 [2019] ). Here, the medical examiner testified that the autopsy showed that the victim was still alive when the fire was started and, contrary to defendant's contention, the jury could infer from the evidence that defendant was aware that such was a reasonable possibility.
We agree with defendant, however, that the verdict finding him guilty of reckless endangerment in the first degree is against the weight of the evidence. "A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person" ( Penal Law § 120.25 ). Count five of the indictment alleged that defendant recklessly engaged in conduct creating a grave risk of death to emergency responders when he intentionally started the fire. We agree with defendant that the verdict on that count is against the weight of the evidence because the People did not prove beyond a reasonable doubt that defendant acted with depraved indifference to human life when he set the fire (see People v. Harvin, 75 A.D.3d 559, 561, 904 N.Y.S.2d 507 [2d Dept. 2010] ; see also People v. Jean–Philippe, 101 A.D.3d 1582, 1583, 956 N.Y.S.2d 709 [4th Dept. 2012] ; see generally People v. Williams, 111 A.D.3d 1435, 1435–1436, 974 N.Y.S.2d 742 [4th Dept. 2013], affd 24 N.Y.3d 1129, 3 N.Y.S.3d 305, 26 N.E.3d 1160 [2015] ; People v. Feingold, 7 N.Y.3d 288, 296, 819 N.Y.S.2d 691, 852 N.E.2d 1163 [2006] ). Inasmuch as defendant is challenging only the weight of the evidence with respect to that count and does not challenge the legal sufficiency of the evidence with respect to that count, we cannot reduce the conviction to the lesser included offense of reckless endangerment in the second degree (see People v. Cooney [appeal No. 2], 137 A.D.3d 1665, 1668–1669, 28 N.Y.S.3d 166 [4th Dept. 2016], appeal dismissed 28 N.Y.3d 957, 38 N.Y.S.3d 526, 60 N.E.3d 422 [2016] ). We therefore modify the judgment by reversing that part convicting defendant of reckless endangerment in the first degree and dismissing count five of the indictment.
We further agree with defendant that the verdict finding him guilty of grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree is against the weight of the evidence. With respect to each of those counts, the People were required to establish that the value of the stolen motor vehicle exceeded $100 (see Penal Law §§ 155.30[8] ; 165.45[5] ). It is well settled that a witness "must provide a basis of knowledge for his [or her] statement of value before it can be accepted as legally sufficient evidence of such value" ( People v. Lopez, 79 N.Y.2d 402, 404, 583 N.Y.S.2d 356, 592 N.E.2d 1360 [1992] ; see People v. Guarnieri, 122 A.D.3d 1078, 1079, 996 N.Y.S.2d 776 [3d Dept. 2014] ). "Conclusory statements and rough estimates of value are not sufficient" ( People v. Loomis, 56 A.D.3d 1046, 1047, 867 N.Y.S.2d 772 [3d Dept. 2008] ; see People v. Slack, 137 A.D.3d 1568, 1569, 27 N.Y.S.3d 301 [4th Dept. 2016], lv denied 27 N.Y.3d 1139, 39 N.Y.S.3d 121, 61 N.E.3d 520 [2016]). Although the monetary element of each crime is quite low, the People did not attempt to meet that threshold through the testimony of any witness. The testimony of a detective that the vehicle was "[d]efinitely worth over probably 10,000" did not satisfy the monetary element of either crime inasmuch as he provided no basis of knowledge for his statement of value. We therefore further modify the judgment by reversing those parts convicting defendant of grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree and dismissing counts eight and nine of the indictment.
Defendant contends that a police officer impermissibly usurped the jury's fact-finding role and acted as a summation witness in testifying that the evidence did not match defendant's claim of self-defense. An officer may testify as to his or her observation of the crime scene (see People v. Carducci, 143 A.D.3d 1260, 1261, 38 N.Y.S.3d 678 [4th Dept. 2016], lv denied 28 N.Y.3d 1143, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017] ). To the extent that the officer offered impermissible opinion testimony, we conclude that any error was harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ; People v. Casanova, 152 A.D.3d 875, 878–879, 60 N.Y.S.3d 503 [3d Dept. 2017], lv denied 30 N.Y.3d 948, 67 N.Y.S.3d 131, 89 N.E.3d 521 [2017] ).
Defendant's contention that he received ineffective assistance of counsel because defense counsel pursued the EED affirmative defense against his wishes is based on matters outside the record and must be raised by way of a motion pursuant to CPL article 440 (see People v. Timmons, 151 A.D.3d 1682, 1684, 56 N.Y.S.3d 729 [4th Dept. 2017], lv denied 30 N.Y.3d 984, 67 N.Y.S.3d 586, 89 N.E.3d 1266 [2017] ; People v. Marshall, 134 A.D.3d 486, 486, 22 N.Y.S.3d 16 [1st Dept. 2015], lv denied 27 N.Y.3d 1002, 38 N.Y.S.3d 111, 59 N.E.3d 1223 [2016] ; People v. Jones, 63 A.D.3d 1582, 1583, 880 N.Y.S.2d 427 [4th Dept. 2009], lv denied 13 N.Y.3d 797, 887 N.Y.S.2d 546, 916 N.E.2d 441 [2009] ). To the extent that defendant alleges that pursuing the defense was a poor strategy, we conclude that the EED affirmative defense was a reasonable and legitimate strategy, and we thus reject that allegation of ineffective assistance of counsel (see generally People v. Benevento, 91 N.Y.2d 708, 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ). We have reviewed the remaining instances of alleged ineffective assistance set forth by defendant and conclude that he 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] ).
As defendant contends and the People correctly concede, arson in the third degree is an inclusory concurrent count of arson in the second degree (see People v. Piccione, 78 A.D.3d 1518, 1519, 910 N.Y.S.2d 784 [4th Dept. 2010] ). Thus, that part of the judgment convicting defendant of arson in the third degree must be reversed and count four of the indictment dismissed (see generally People v. Hickey, 171 A.D.3d 1465, 1466–1467, 98 N.Y.S.3d 684 [4th Dept. 2019], lv denied 33 N.Y.3d 1105, 106 N.Y.S.3d 696, 130 N.E.3d 1306 [2019] ). We therefore further modify the judgment accordingly. Contrary to defendant's contention, however, assault in the first degree is not an inclusory concurrent count of murder in the second degree (see People v. Wyant, 98 A.D.3d 1277, 1277, 951 N.Y.S.2d 294 [4th Dept. 2012] ; People v. Alvarez, 38 A.D.3d 930, 934, 830 N.Y.S.2d 848 [3d Dept. 2007], lv denied 8 N.Y.3d 981, 838 N.Y.S.2d 484, 869 N.E.2d 660 [2007] ).
Finally, we note that the certificate of conviction incorrectly reflects that defendant was convicted of two counts of tampering with physical evidence pursuant to Penal Law § 215.50(2), and it must therefore be amended to reflect that he was convicted of two counts of tampering with physical evidence pursuant to section 215.40(2) (see People v. Cruz–Rivera, 174 A.D.3d 1512, 1514, 105 N.Y.S.3d 249 [4th Dept. 2019] ).