Opinion
February 4, 1999
Appeal from the County Court of Clinton County (Aison, J.).
On November 23, 1993, the victim, a bartender in a local Clinton County bar, was murdered. The victim typically worked from 6:00 P.M. until 2:00 to 2:30 A.M. when she would close the bar. Sometime between 4:00 A.M. and 5:30 A.M. on the day of her murder, the bar caught fire. At approximately 9:00 A.M., the victim's car was found in a wooded area near a creek in close proximity to the bar and shortly thereafter her body was found in the water. She was partially unclothed with her hands tied behind her back and had suffered numerous stab wounds.
An investigation of the murder led to defendant, who was living in an apartment in the vicinity of the bar and had been observed at the bar until approximately 1:00 A.M. on the day of the victim's death. Defendant was arrested and later indicted for the aforementioned crimes including two counts of assault in the second degree and criminal possession of stolen property in the fifth degree. Following a jury trial at which defendant represented himself for the most part, he was convicted of all of the charges except criminal possession of stolen property, which had been dismissed by County Court prior to trial, and the two counts of assault which were not submitted to the jury. Sentenced as a persistent felony offender to terms of imprisonment of 25 years to life on all five convictions, with the rape and criminal possession of a weapon conviction to run consecutively to the sentences on the two murder counts, defendant appeals.
Defendant challenges County Court's denial of his request for an alibi charge. Testimony was adduced by his next door neighbor that defendant's apartment door was open and shortly thereafter closed at approximately the time of the incident. Defendant contends that this evidence, coupled with his statement to State Police Investigator Jean Birtz that he was home at all relevant times and even overheard an argument between this neighbor and her boyfriend, should be sufficient to conclude that he was in his apartment. We disagree. Even assuming the truth of the neighbor's testimony, we do not find it sufficient to establish that defendant was any place other than at the scene of the crimes at the time that they were being committed ( see, People v. Walsh, 169 A.D.2d 845, 846). Moreover, Birtz could not be an alibi witness since he could only report the statements that defendant made to him. With defendant choosing not to testify at trial, we find that no viable evidence was presented from which the jury could have assessed an alibi defense.
Equally unavailing is defendant's contention that County Court erred in denying his motion for a mistrial based upon the People's unauthorized communication with the immediate family of a sworn juror. While the District Attorney's office had requested police investigators to communicate with the family members of a juror, we find County Court to have properly responded to the error by questioning the juror extensively with regard to her ability to remain fair and impartial and offering defendant the opportunity to have her excused. Although defendant initially refused the offer, when he later requested that she be excused, the court complied. Moreover, the record reflects that although defendant made a motion to have the prosecutor disqualified for such conduct, no specific motion for a mistrial was proffered ( see, People v. Cuesta, 177 A.D.2d 639, 640, lv denied 79 N.Y.2d 919). Acknowledging that the prosecutor acted improperly, we find that the inappropriate conduct constituted no more than harmless error ( see, People v. Crimmins, 36 N.Y.2d 230).
As to summation, allegations regarding prosecutorial misconduct are similarly unavailing in this case, either because substantial prejudice was not established ( see, People v. Jones, 213 A.D.2d 801, 803, lv denied 85 N.Y.2d 975; People v. Gutkaiss, 206 A.D.2d 628, lv denied 84 N.Y.2d 936) or because the issues were unpreserved due to defendant's failure to object, state specific reasons for objections or request curative instructions when they were appropriate ( see, CPL 470.05; 470.15 [4] [a]; People v. Fleming, 70 N.Y.2d 947, 948; People v. Nuccie, 57 N.Y.2d 818, 819). Mindful that "counsel is to be afforded `the widest latitude by way of comment, denunciation or appeal in advocating his cause' * * * summation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his command" ( People v. Ashwal, 39 N.Y.2d 105, 109, quoting Williams v. Brooklyn Elec. R. R. Co., 126 N.Y. 96, 103). Reviewing the summation in its totality, we find that the comments made were a fair response to defendant's arguments and of the evidence presented ( see, People v. Ashwal, supra, at 109).
Having considered defendant's remaining; contentions, including his allegation that the People improperly elicited evidence concerning DNA testing in violation of County Court's suppression order, and finding that they are either unpreserved or without merit, we lastly review the challenge to the sentence. On this issue, we agree with defendant that County Court erred in imposing consecutive sentences for the convictions of criminal possession of a weapon in the third degree and murder in the second degree. While the evidence clearly supports a conclusion that defendant possessed the knife before he came into contact with the victim, there was no evidence to support the proposition that he intended to use the knife unlawfully on anyone other than the victim. Upon this finding, the sentences for these convictions must run concurrently.
Mikoll, J. P., Mercure, Crew III and Yesawich Jr., JJ., concur.
Ordered that the judgment is modified, on the law, by reversing so much thereof as sentenced defendant to, consecutive sentences for the crimes of criminal possession of a weapon in the third degree and murder in the second degree; the sentences imposed for these convictions are to run concurrently with each other; and, as so modified, affirmed.