Opinion
May 7, 1999
Appeal from Judgment of Ontario County Court, Harvey, J. — Murder, 2nd Degree.
Present — Denman, P. J., Hayes, Wisner, Hurlbutt and Callahan, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of three counts each of murder in the second degree (Penal Law § 125.25) and manslaughter in the second degree (Penal Law § 125.15) and one count of arson in the first degree (Penal Law § 150.20), all arising from a fire that killed defendant's three children. Defendant was sentenced to concurrent indeterminate terms of incarceration, the longest of which are 25 years to life. Defendant also appeals from a postjudgment order denying his motion to vacate the conviction on the grounds of fraud and newly discovered evidence ( see, CPL 440.10 [b], [c], [g]).
Defendant contends that his statements should have been suppressed as involuntary and on the ground that he was deprived of his right to counsel as a result of undue delay in arraignment; that County Court should have admitted evidence concerning defendant's wife's acts and threats of violence towards the children; that the court erred in excluding polygraph evidence from the Huntley hearing and trial; that the court improperly prohibited cross-examination of a prosecution witness concerning a pending criminal charge; that the court erred in excluding evidence of a conversation between defendant and his father; that the failure of police to videotape the interrogation entitled the defense to a missing evidence charge; that the court erred in denying the defense a missing witness charge for the People's failure to call defendant's wife; that the prosecutor was guilty of misconduct in violating the court's Sandoval ruling; and that the court should have vacated the conviction and ordered a new trial on the grounds of fraud and newly discovered evidence.
The court properly denied the motion to suppress defendant's statements. The record of the Huntley hearing establishes that the statements were not elicited by coercion or other improper tactics that resulted in defendant's will being overborne or defendant's capacity for self-determination being critically impaired ( see, People v. Anderson, 42 N.Y.2d 35, 38, 41). The length of the interrogation was not such as to deprive defendant of due process ( see, People v. Tarsia, 50 N.Y.2d 1, 12-13; People v. Corey, 233 A.D.2d 773, 774, lv denied 89 N.Y.2d 984; People v. Garcia, 216 A.D.2d 319, lv denied 86 N.Y.2d 842). Nor did police treatment of defendant render the statements involuntary. The prosecution witnesses, whose testimony the suppression court and jury were entitled to credit ( see, People v. Prochilo, 41 N.Y.2d 759, 761; People v. Turcotte, 252 A.D.2d 818, lv denied 92 N.Y.2d 1054), testified that defendant was cooperative throughout the interrogation, never asked that questioning cease, and never asked for counsel ( see, People v. Torres, 245 A.D.2d 1124, 1125, lv denied 91 N.Y.2d 978). Police furnished defendant with lunch, beverages, cigarettes and rest room breaks ( see, People v. Tarsia, supra, at 12; People v. Concepcion, 257 A.D.2d 463).
We reject the contention that defendant's statements were rendered involuntary by the fact that interrogators told defendant that he had failed a polygraph. There was no showing that police lied about the polygraph or its results ( see, People v. Sobchik, 228 A.D.2d 800, 802; People v. Deskovic, 201 A.D.2d 579, 579-580, lv denied 83 N.Y.2d 1003). In any event, such stratagems, even when they involve some guile on the part of police, do not ordinarily deprive a defendant of due process ( see, People v. Tarsia, supra, at 10-12; People v. Sobchik, supra, at 802; People v. Deskovic, supra, at 579-580; People v. Sohn, 148 A.D.2d 553, 555-556, lv denied 74 N.Y.2d 747; People v. Henry, 132 A.D.2d 673, 674-675). Further, police did not make any promises or threats that would have induced a false confession ( see, People v. Huntley, 259 A.D.2d 843; People v. Richardson, 202 A.D.2d 958, 958-959, lv denied 83 N.Y.2d 914).
We reject the contention that the statements should have been suppressed on the ground that defendant was deprived of his right to counsel. The delay in arraignment, which took place five hours after defendant first admitted setting the fire, was not undue, unnecessary or unreasonable ( see, People v. Smith, 234 A.D.2d 946, lv denied 489 N.Y.2d 1041; People v. Jones, 152 A.D.2d 984, 985, lv denied 74 N.Y.2d 812; People v. Di Fabio, 134 A.D.2d 918, 919-920, appeal dismissed 72 N.Y.2d 949; People v. Dobranski, 112 A.D.2d 541, 542, lv denied 66 N.Y.2d 614). Additionally, there is no proof that the delay was for the purpose of depriving defendant of his right to counsel ( see, People v. Ortlieb, 84 N.Y.2d 989, 990, affg 201 A.D.2d 865; People v. Smith, supra, at 946).
The court did not err in excluding evidence concerning defendant's wife's mistreatment of the children. Such evidence was collateral and conjectural and would have diverted the jury from the question of defendant's guilt or innocence ( see, People v. Fagan, 215 A.D.2d 686, lv denied 86 N.Y.2d 794; People v. Veras, 182 A.D.2d 729, 730, lv denied 80 N.Y.2d 897; People v. Martinez, 177 A.D.2d 600, 601-602, lv denied 79 N.Y.2d 829; cf., People v. Mason, 186 A.D.2d 984, lv denied 81 N.Y.2d 791). The court likewise properly refused to admit the polygraph evidence ( see, People v. Angelo, 88 N.Y.2d 217, 223; People v. Shedrick, 66 N.Y.2d 1015, 1018, rearg denied 67 N.Y.2d 758).
The court erred in precluding cross-examination of a prosecution witness concerning a pending criminal charge ( see, People v. Caines, 221 A.D.2d 278, lv denied 88 N.Y.2d 845; People v. Parsons, 112 A.D.2d 250, 250-251, lv denied 71 N.Y.2d 1031; cf., People v. Avery, 161 A.D.2d 497, 498; see generally, People v. Sorge, 301 N.Y. 198, 201). Nonetheless, the error is harmless. The witness was cross-examined extensively concerning his criminal record, and proof of one additional charge would have been cumulative and would not have incrementally affected the jury's evaluation of credibility ( see, People v. Caines, supra, at 278; People v. Allen, 67 A.D.2d 558, 559-560, affd 50 N.Y.2d 898). Moreover, the evidence of defendant's guilt, including defendant's statements and the circumstances surrounding the fire, is overwhelming, and there is no significant probability that defendant would have been acquitted but for the error ( see, People v. Parsons, supra, at 251; see also, People v. Crimmins, 36 N.Y.2d 230, 241-242).
The court also erred in excluding evidence of statements made by defendant to his father. Those statements were not offered for their truth, but for the fact that they were made ( see, Prince, Richardson on Evidence § 8-104 [Farrell 11th ed]; see also, People v. Huertas, 75 N.Y.2d 487, 491-492; People v. King, 217 A.D.2d 909, 910, lv denied 87 N.Y.2d 847). However, that error also is harmless ( see, People v. Bruner, 222 A.D.2d 738, 739, lv denied 88 N.Y.2d 981).
The prosecutor was not guilty of misconduct for questioning defendant in disregard of the Sandoval ruling. By asserting that he is a nonviolent person, defendant opened the door to cross-examination concerning prior violent acts ( see, People v. Santmyer, 231 A.D.2d 956, citing People v. Rios, 166 A.D.2d 616, 618, lv denied 77 N.Y.2d 842; see also, People v. Fardan, 82 N.Y.2d 638, 645-646; People v. Wilkins, 239 A.D.2d 105, lv denied 90 N.Y.2d 899).
We have reviewed defendant's remaining contentions, including those raised on the appeal from the order denying the CPL article 440 motion, and conclude that they are without merit.