Opinion
No. 212-212A Ind No. 1805/16 Case No. 2018-2435 2021-03738
05-09-2023
The People of the State of New York, Respondent, v. Michael Stewart, Defendant-Appellant.
Mark W. Zeno, Center for Appellate Litigation, New York (Barbara Zolot of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Vincent Rivellese of counsel), for respondent.
Mark W. Zeno, Center for Appellate Litigation, New York (Barbara Zolot of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Vincent Rivellese of counsel), for respondent.
Before: Webber, J.P., Kern, Friedman, Mendez, Shulman, JJ.
Judgment, Supreme Court, Bronx County (Denis J. Boyle, J. at hearing; Lester B. Adler, J. at jury trial and sentencing), rendered November 27, 2017, convicting defendant of murder in the second degree, and sentencing him to a term of 20 years to life, unanimously modified, on the law, to the extent of vacating the DNA databank fee and reducing the mandatory surcharge and crime victim assistance fee to $150 and $5, respectively, and otherwise affirmed. Order, Supreme Court, Bronx County (Martin Marcus, J.), entered on or about June 29, 2021, which denied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 N.Y.3d 342, 348 [2007]). Initially, we find no basis to disturb the jury's credibility determinations. Circumstantial evidence established beyond a reasonable doubt that defendant was the person who shot and killed the victim, who was the mother of his child (see People v Vega, 3 A.D.3d 239, 251 [1st Dept 2004], lv denied 2 N.Y.3d 766 [2004]; People v Bierenbaum, 301 A.D.2d 119, 139 [1st Dept 2002], lv denied 99 N.Y.2d 636 [2003], cert denied 540 U.S. 821 [2003]). In addition to evidence of motive and intent (see People v Baez, 187 A.D.3d 610, 610 [1st Dept 2020], lv denied 36 N.Y.3d 969 [2020]), defendant's statement to the police placed him at the victim's apartment where she was found with a gunshot wound to the head. This statement was highly incriminating, and the jury could have readily discounted the exculpatory aspect of the statement as implausible. Defendant also acknowledged that during the general time period of the homicide, he carried a firearm consistent with the type of firearm police experts testified was used in this killing. The apartment showed no signs of forced entry, of a level of disarray that would suggest a burglary, or of a sudden confrontation between the victim and an intruder. Defendant, who admitted that he had keys to the apartment and who had been intimate with the victim, was the only person other than his and the victim's two-year-old child known to be present in the apartment the night of the murder. The People also presented significant evidence of consciousness of guilt. Among other things, evidence was presented that defendant bought an international airline ticket and left the United States the morning after the murder, before telephoning the victim's father and informing him that his daughter had been killed and that his grandchild was still alive in the apartment. There was no evidence that anyone other than defendant was even aware that the victim had been killed at the time defendant called the victim's father. The various alternative theories proposed by defendant had no evidentiary support or were refuted by the evidence.
The suppression hearing court properly denied defendant's motion to suppress statements he made to police after he was given Miranda warnings. The record supports the court's finding that, when viewed in context, certain phrases used by defendant did not constitute requests to terminate the interview or unequivocal assertions of the right to remain silent (see People v Rodriguez, 49 A.D.3d 431, 433 [1st Dept 2008], lv denied 10 N.Y.3d 964 [2008]; People v Garcia, 284 A.D.2d 106, 107 [1st Dept 2001], lv denied 97 N.Y.2d 641 [2001]; see also People v Dawson, 38 N.Y.3d 1055, 1055-56 [2022]).
The court providently exercised its discretion in permitting the People to introduce limited evidence of prior domestic violence incidents between defendant and the victim, because they were probative of identity, motive and intent, and provided background information explaining the abusive relationship between the parties (see People v Frankline, 27 N.Y.3d 1113, 1115 [2016]; People v Dorm, 12 N.Y.3d 16, 19 [2009]; Vega, 3 A.D.3d at 248-249). These incidents were not unduly remote in time or disconnected from the murder (see Baez, 187 A.D.3d at 611). The probative value of this evidence outweighed any potential prejudicial effect, which was minimized by the court's limiting instruction.
The court properly denied defendant's CPL 440.10 motion, without granting a hearing (see People v Samandarov, 13 N.Y.3d 433, 439-440 [2009]; People v Satterfield, 66 N.Y.2d 796, 799-800 [1985]). "[W]hether a defendant is entitled to a hearing on a CPL 440.10 motion is a discretionary determination" (People v Jones, 24 N.Y.3d 623, 635 [2014]), and there were no factual disputes requiring resolution at an evidentiary hearing. The court correctly determined, based on the parties' submissions, that defendant received effective assistance of counsel under the state and federal standards (see People v Benevento, 91 N.Y.2d 708, 713-714 [1998]; Strickland v Washington, 466 U.S. 668 [1984]). Defendant failed to show that counsel's decision to forgo a motion for dismissal on the ground of preindictment delay fell below an objective standard of reasonableness, or that such a motion would have succeeded. The court properly weighed the applicable factors and determined that there was no basis to dismiss the indictment (see People v Taranovich, 37 N.Y.2d 442, 445 [1975]). Although the police investigatory delay was lengthy, it was satisfactorily explained (compare People v Evan Wald _A.D.3d _, 2023 NY Slip Op 01967 [1st Dept 2023], with People v Regan, _ N.Y.3d _, 2023 NY Slip Op 01353 [2023]).
We perceive no basis for reducing the sentence. However, as the People concede, the fees and surcharge should be reduced or vacated as indicated, in accordance with the sentencing laws in effect when the crime was committed.: