Opinion
362 KA 16–01598
03-22-2019
The PEOPLE of the State of New York, Respondent, v. Daniel WHITING, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree ( Penal Law § 125.25 [1 ] ). Defendant's conviction stems from his brutal murder of his wife, who he stabbed 30 times in their bedroom in the middle of the night while their two infant children were also in the room. Defendant stabbed himself twice in the leg in an attempt to make it look like an intruder committed the crime.
We reject defendant's contention that County Court erred in refusing to suppress two statements that he made to police detectives while at the hospital, i.e., one that occurred shortly after the incident while defendant was awaiting surgery and another that occurred later in the day after his surgery. We agree with the court that defendant was not in custody during the first interview inasmuch as defendant was not physically restrained, and the questions asked were investigatory, not accusatory (see People v. Law , 273 A.D.2d 897, 898–899, 710 N.Y.S.2d 223 [4th Dept. 2000], lv denied 95 N.Y.2d 965, 722 N.Y.S.2d 483, 745 N.E.2d 403 [2000] ; People v. Bowen , 229 A.D.2d 954, 955, 645 N.Y.S.2d 381 [4th Dept. 1996], lv denied 88 N.Y.2d 1019, 651 N.Y.S.2d 18, 673 N.E.2d 1245 [1996] ). In any event, defendant waived his Miranda rights before both interviews, and we agree with the court that the waivers were valid (see People v. Cimino , 49 A.D.3d 1155, 1156–1157, 856 N.Y.S.2d 368 [4th Dept. 2008], lv denied 10 N.Y.3d 861, 860 N.Y.S.2d 487, 890 N.E.2d 250 [2008] ). Although defendant was under the influence of medication, he was not intoxicated "to the degree of mania, or of being unable to understand the meaning of his statement[s]" ( People v. Tracy , 125 A.D.3d 1517, 1518, 3 N.Y.S.3d 256 [4th Dept. 2015], lv denied 27 N.Y.3d 1008, 38 N.Y.S.3d 117, 59 N.E.3d 1229 [2016] [internal quotation marks omitted] ). Contrary to defendant's further contention, his statement to the detectives during the second interview to "[e]ither wrap this up or I'm going to say the word lawyer so that you wrap it up" was not an unequivocal request for an attorney (see generally People v. Glover , 87 N.Y.2d 838, 839, 637 N.Y.S.2d 683, 661 N.E.2d 155 [1995] ; People v. Higgins , 124 A.D.3d 929, 931, 1 N.Y.S.3d 424 [3d Dept. 2015] ). We also reject defendant's contention that he received ineffective assistance of counsel when defense counsel failed to call a toxicology expert to testify at the Huntley hearing. Defendant "failed to demonstrate the absence of a tactical or other legitimate explanation for counsel's decision" ( People v. Bonelli , 41 A.D.3d 972, 973, 837 N.Y.S.2d 434 [3d Dept. 2007], lv denied 9 N.Y.3d 921, 844 N.Y.S.2d 176, 875 N.E.2d 895 [2007] ; see People v. Safford , 74 A.D.3d 1835, 1837, 902 N.Y.S.2d 866 [4th Dept. 2010], lv denied 16 N.Y.3d 746, 917 N.Y.S.2d 627, 942 N.E.2d 1052 [2011], reconsideration denied 16 N.Y.3d 899, 926 N.Y.S.2d 34, 949 N.E.2d 982 [2011] ).
Defendant's contention that the evidence is legally insufficient to establish his identity as the perpetrator is not preserved for our review inasmuch as he failed to move for a trial order of dismissal on that ground (see People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). In any event, defendant's contention lacks merit. Viewing the evidence in the light most favorable to the People (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 to support the conviction (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). The physical evidence and testimony from prosecution witnesses about their observations of the crime scene, which contradicted defendant's explanation about what occurred, together with the testimony of a neighbor who heard a man and a woman arguing before hearing sirens and the testimony of three jailhouse informants, established that defendant was the perpetrator. Indeed, we agree with the People that it defies logic that an unknown assailant would enter the bedroom of defendant and his wife in the middle of the night, stab the wife 30 times but defendant only twice, and then leave the house without a trace. In light of our determination, we reject defendant's contention that defense counsel was ineffective in failing to preserve his legal sufficiency challenge for our review. "A defendant is not denied effective assistance of trial counsel merely because counsel does not make a motion or argument that has 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] ). 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 further conclude that the verdict 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 ).
The court held Cardona hearings (see People v. Cardona , 41 N.Y.2d 333, 392 N.Y.S.2d 606, 360 N.E.2d 1306 [1977] ) with respect to the three jailhouse informants and, contrary to defendant's contention, we conclude that the record supports the court's determination that they were not acting as agents of the government when defendant made inculpatory statements to them (see People v. Allen , 122 A.D.3d 1423, 1424, 997 N.Y.S.2d 202 [4th Dept. 2014], lv denied 25 N.Y.3d 987, 10 N.Y.S.3d 530, 32 N.E.3d 967 [2015], reconsideration denied 25 N.Y.3d 1197, 16 N.Y.S.3d 520, 37 N.E.3d 1163 [2015] ; People v. Young , 100 A.D.3d 1427, 1427–1428, 953 N.Y.S.2d 790 [4th Dept. 2012], lv denied 20 N.Y.3d 1105, 965 N.Y.S.2d 802, 988 N.E.2d 540 [2013] ). The fact that the informants received some consideration in exchange for their testimony at trial did not retroactively create an agency relationship. Finally, the sentence is not unduly harsh or severe.