People v. Kimes

• Decision Date: 07 December 2006
• Docket Number: 8251.,M-1106.
• Citation: 37 A.D.3d 1,831 N.Y.S.2d 1,2006 NY Slip Op 09134
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. SANTE KIMES, Appellant.
• Court: New York Supreme Court — Appellate Division

37 A.D.3d 1

831 N.Y.S.2d 1

2006 NY Slip Op 09134

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. SANTE KIMES, Appellant.

8251.

M-1106.

Appellate Division of the Supreme Court of the State of New York, First Department.

December 7, 2006.

Richard M. Greenberg, Office of the Appellate Defender, New York City (Joseph M. Nursey of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Hilary Hassler and Eleanor J. Ostrow of counsel), for respondent.

OPINION OF THE COURT

CATTERSON, J.

The arrest and trial of Sante Kimes and her son, Kenneth, on charges of murdering a wealthy widow in order to defraud her of a multi-million-dollar Upper East Side townhouse captured the attention of the country. From the moment 82-year-old Irene Silverman disappeared through the eventual trial and convictions for her murder, the two modern day grifters were the subjects of intense media scrutiny in newspapers, newsmagazines and on television news shows.

They were the subjects of at least one made-for-TV movie. Three books were published about the duo, described by one popular weekly magazine as a "one-family crime tsunami linked to a cross-country trail of cons, insurance scams, arson, missing persons and murder."¹ A book by Reuters reporter Jeanne King presumed to encapsulate their unsavory story in its title, "Dead End: The Crime Story of the Decade—Murder, Incest and High-Tech Thievery."²

Even though Silverman's body was not found, the People brought mother and son to trial for murder on circumstantial evidence that gave new life to the traditional maxim that circumstantial proof will often paint a far stronger picture of guilt than direct evidence. Subsequently, Kimes and her son were found guilty of multiple counts of murder in the second degree, robbery and burglary in the first degree, criminal possession of a weapon in the second and third degrees, 16 counts of forgery in the second degree, criminal possession of a forged instrument in the second degree, 29 counts of eavesdropping, criminal possession of stolen property in the third degree, conspiracy in the fourth degree and attempted grand larceny in the first degree. Kimes and her son were sentenced on the same date to aggregate terms of 120 years to life. Sante Kimes now appeals from the judgment.³

On appeal, Kimes challenges the legal sufficiency of her murder conviction; the court's pretrial Huntley, Batson and Sandoval rulings and the denial of her request for a Darden hearing; the admission of certain evidence at trial including incriminating notebooks; certain restrictions on the cross-examination of prosecution witnesses; the discharge of a sick juror; the adequacy of the court's inquiry into a claim of juror misconduct; that the trial court overlooked a possible Brady violation; that one of her lawyers had a conflict of interest; that the court interfered with her right to counsel by suspending her jailhouse telephone privileges; and that she was deprived of her right to be present at a critical stage of the proceedings.

The Legal Sufficiency of the Murder Conviction

At the outset, we note that Kimes does not challenge the sufficiency of the evidence underlying the majority of her convictions evidently recognizing that the counts of conspiracy to steal Silverman's home and the attempted theft of it were proven overwhelmingly by both direct and circumstantial evidence. On appeal, Kimes challenges the legal sufficiency only of her convictions for murder, as well as burglary and robbery in the first degree; each of which required a showing that she caused, at least, physical injury to Irene Silverman.

Kimes asserts that there is no physical nor forensic evidence that either Kimes herself or acting in concert with her son inflicted any physical injury on Ms. Silverman, or that she was the last person to see Silverman before her disappearance. She also asserts that there were no witnesses who observed Ms. Silverman in the presence of either Kimes or her son on the day of her disappearance. She further asserts that according to the trial testimony, the last witness to see Ms. Silverman was her employee Martha Rivera who was also the person who discovered her missing on the evening of July 5, 1998. Additionally, Kimes correctly maintains that there was no physical evidence of Ms. Silverman's presence in the car that her son, Kenneth Kimes, drove on the day of Silverman's disappearance, or in the apartment (hereinafter referred to as Apartment 1B) which Kenneth rented in Silverman's townhouse.

Kimes acknowledges, however, that certain evidence supported a finding of motive for homicide. She also concedes that homicide may be proved solely by circumstantial evidence. (See People v Bierenbaum, 301 AD2d 119 [1st Dept 2002], lv denied 99 NY2d 626 [2003], cert denied 540 US 821 [2003].)

In assessing the legal sufficiency of trial evidence our standard of review is that while viewing the evidence in a light most favorable to the People, we must determine whether the guilty verdict is based on any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the factfinder at trial. (See id. at 131, citing People v Williams, 84 NY2d 925, 926 [1994].)

The testimony and evidence at trial revealed the following:

In 1998, Silverman owned, and lived in, an $8 million townhouse on East 65th Street between Madison and Fifth Avenues; she rented apartments within the townhouse to business executives and patrons of the arts on short-term visits to the city. She was aided by a staff of employees. She kept large sums of cash in her personal apartment on the first floor and invariably carried with her a large and readily identifiable set of keys to all the townhouse doors.

In the spring of 1998, Silverman was in perfect mental and physical health. She left the townhouse infrequently and only in the company of a staff member; she maintained an active social life by entertaining her many friends at the townhouse. She was financially secure. The townhouse was Silverman's pride and joy. She had created an arts foundation in honor of her deceased mother and bequeathed the townhouse and its contents to the foundation upon her death.

Kimes and her son were in significantly different circumstances. From 1994, after Kenneth Kimes, Sr. died, Kimes and her son urged various people in their employ (whom they recruited from homeless shelters or by advertising on Salvation Army bulletin boards) to secure personal identification documents for themselves. Over the course of time, those documents were stolen from each employee. In March 1998, Kimes and her son passed a bad check to steal a Lincoln Town Car from a Utah car dealer. At the same time, they contacted Stanley Patterson, who helped them relocate to California and sold them three guns, including a 9 millimeter Glock and a .22 caliber Beretta.

In April 1998, Kimes and son relocated to Florida where, as the evidence indicates, they hatched their scheme to murder Silverman in order to steal the townhouse from her. Kimes, using an alias contacted a Florida title company, confirmed that Irene Silverman was the sole owner of the Manhattan property at 20 East 65th Street and that the property was free of liens. Shortly thereafter, they stole a number of identification cards from Dr. Tony Tsoukas.

In May 1998, they made telephone contact with Silverman, in a bid to have Kenneth lease an apartment from her. Kimes, posing as "Ava Guerra," dropped the name of Silverman's friend, Rudy Vaccari, and managed to secure Apartment 1B for lease to Kenneth under the guise of "Manny Guerrin." Silverman's business manager, Valerie McLeod, arranged to have "Manny" move in Monday, June 15.

On or about Saturday, June 13, Kimes, her son and Jose Alvarez, an employee of the Kimeses, loaded up the stolen Lincoln in Florida and headed for Silverman's townhouse in New York City. As they drove through New Jersey, Kenneth pointed out a grassy spot off the highway and remarked to his mother that it would be a "perfect place to dump a body."

Although Kenneth Kimes arrived at the townhouse a day earlier than planned, Silverman and Rivera allowed him to move into Apartment 1B. Silverman was immediately suspicious of "Manny" and stated that "he smells like jail." Unbeknownst to them, Kimes moved into the apartment with her son. On Monday morning, Kenneth left the Lincoln in a local parking garage.

Over the course of the next few weeks, Kimes and her son set up eavesdropping devices on Silverman's telephone line, and Kenneth questioned her house staff in an effort to learn as much as they could about Silverman and her household routines and schedules.

On June 18, a friend of Kenneth's visited him and Kimes in their apartment at Silverman's townhouse. Kimes confided that she and Kenneth were thinking of buying the building. Over the course of the next week, "Manny" met with Valerie and tried to learn Silverman's Social Security number from her. Tensions in the household continued to mount between Silverman and "Manny," and Silverman resolved that he could not stay there after all. Meanwhile, Kimes and son gathered property transfer forms, including a deed of sale which would be needed for the fraudulent transfer of Silverman's townhouse. For the fraud to pass muster, however, they needed to obtain Silverman's Social Security number, and Kimes made concerted efforts to obtain it.

Kimes and son then forged Silverman's signature on the deed of sale for the townhouse and began scouting for a notary who would authenticate the forged signature. One notary public who came to Apartment 1B was greeted by the sight of Kimes wearing a nightcap and nightgown posing as a bedridden Silverman. This notary refused to notarize Silverman's signature on the deed.

On July 2, 1998, Kenneth brought another notary, Noelle Sweeney, to Apartment 1B. Once again, Kimes posed as an infirm Silverman,...