People v. Agan

• Decision Date: 14 July 2022
• Docket Number: 110262
• Parties: The PEOPLE of the State of New York, Respondent, v. David T. AGAN Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

207 A.D.3d 861

172 N.Y.S.3d 177

The PEOPLE of the State of New York, Respondent,

v.David T. AGAN Jr., Appellant.

110262

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: March 24, 2022

Decided and Entered: July 14, 2022

Matthew C. Hug, Albany, for appellant, and appellant pro se.

Paul Czajka, District Attorney, Hudson (James Carlucci of counsel), for respondent.

Before: Egan Jr., J.P., Aarons, Reynolds Fitzgerald, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeal from a judgment of the County Court of Columbia County (Koweek, J.), rendered February 15, 2018, upon a verdict convicting defendant of the crimes of murder in the first degree, rape in the third degree (15 counts), criminal sexual act in the third degree (28 counts) and incest in the third degree (92 counts).

On December 10, 2015, defendant encountered his wife (hereinafter the deceased victim) in the lobby of a medical arts facility – where they each received mental health counseling – and stabbed her to death with a screwdriver. Defendant was subsequently indicted and charged with murder in the second degree. Thereafter, the People learned, through recorded jail telephone calls and letters written by defendant to his daughter (hereinafter the minor victim), that defendant had engaged in a sexual relationship with the minor victim. In October 2016, defendant was charged in a superseding indictment with murder in the first degree, rape in the third degree (15 counts), criminal sexual act in the third degree (28 counts) and incest in the third degree (96 counts).¹ To elevate the charge to murder in the first degree, the People proffered the aggravating element of witness elimination, alleging that defendant killed the deceased victim to prevent her from testifying against him with respect to his sexual relationship with the minor victim. Following a jury trial – wherein defendant raised the affirmative defense of extreme emotional disturbance (hereinafter EED) – he was convicted as charged. County Court thereafter sentenced defendant to an aggregate prison sentence of a minimum term of 186 ? years to life and a maximum term of 389 years to life. Defendant appeals.

As an initial matter, defendant's contention that the sex offenses alleged in counts 2 through 140 of the indictment are facially duplicitous is not preserved for our review as he failed to raise this claim in his omnibus motion and did not move to dismiss the counts on this basis at trial (see People v. Allen, 24 N.Y.3d 441, 449–450, 999 N.Y.S.2d 350, 24 N.E.3d 586 [2014] ; People v. Tomlinson, 53 A.D.3d 798, 799, 861 N.Y.S.2d 221 [2008], lv denied 11 N.Y.3d 835, 868 N.Y.S.2d 610, 897 N.E.2d 1094 [2008] ; People v. Weber, 25 A.D.3d 919, 922, 807 N.Y.S.2d 222 [2006], lv denied 6 N.Y.3d 839, 814 N.Y.S.2d 88, 847 N.E.2d 385 [2006] ).

Defendant next contends that his conviction for murder in the first degree is not supported by legally sufficient evidence and is against the weight of the evidence, as the proof elicited at trial failed to establish that the crime was a witness elimination murder. Alternatively, defendant contends that the jury's rejection of the affirmative defense of EED was against the weight of the evidence. Defendant further contends that the jury's verdict as to the sex offenses, which were alleged in counts 2 through 140 of the indictment, is not supported by legally sufficient evidence and is against the weight of the evidence.

"In assessing a challenge to the legal sufficiency of the evidence, this Court views the evidence in the light most favorable to the People to evaluate whether any valid line of reasoning and permissible inferences could satisfy every element of the charged crime[s] and lead rational people to the conclusion reached by the jury" ( People v. Reese, 166 A.D.3d 1057, 1058, 87 N.Y.S.3d 711 [2018] [internal quotation marks and citations omitted], lv denied 33 N.Y.3d 953, 100 N.Y.S.3d 206, 123 N.E.3d 865 [2019] ; see People v. Novak, 148 A.D.3d 1352, 1354, 50 N.Y.S.3d 577 [2017], lv denied 29 N.Y.3d 1084, 64 N.Y.S.3d 174, 86 N.E.3d 261 [2017] ). "When undertaking a weight of the evidence review, we must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and, if not, then weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence" ( People v. Terry, 196 A.D.3d 840, 841, 149 N.Y.S.3d 705 [2021] [internal quotation marks and citations omitted], lvs denied 37 N.Y.3d 1027, 1030, 153 N.Y.S.3d 411, 432, 175 N.E.3d 436, 457 [2021]; see People v. Williams, 130 A.D.3d 1323, 1323–1324, 13 N.Y.S.3d 698 [2015] ). Because defendant made only a general objection at the close of the People's proof to dismiss the sex offenses, his legal sufficiency claims with respect thereto are unpreserved for our review (see People v. Gray, 86 N.Y.2d 10, 19–21, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; People v. Baber, 182 A.D.3d 794, 795, 123 N.Y.S.3d 222 [2020], lv denied 35 N.Y.3d 1064, 129 N.Y.S.3d 365, 152 N.E.3d 1167 [2020] ). "In any event, when reviewing [a] defendant's weight of the evidence challenge, we ensure that the proof submitted supports the elements of the crimes" ( People v. McCollum, 176 A.D.3d 1402, 1402, 112 N.Y.S.3d 298 [2019] [citations omitted]; see People v. Baber, 182 A.D.3d at 795, 123 N.Y.S.3d 222 ).

As relevant here, "[a] person is guilty of murder in the first degree when[,] ... [w]ith intent to cause the death of another person, he [or she] causes the death of such person or of a third person; and ... the intended victim was a witness to a crime committed on a prior occasion[,] and the death was caused for the purpose of preventing the intended victim's testimony in any criminal action or proceeding whether or not such action or proceeding had been commenced" ( Penal Law § 125.27[1][a][v] ). "A defendant who successfully asserts the defense of extreme emotional disturbance, however, is guilty of manslaughter and not murder" ( People v. Williams 130 A.D.3d at 1324, 13 N.Y.S.3d 698 [citations omitted]; see Penal Law §§ 125.27[2][a][i] ; 125.20; 25.00[2]). "A person is guilty of rape in the third degree when[,] ... [b]eing [21] years old or more, he or she engages in sexual intercourse with another person less than [17] years old" ( Penal Law § 130.25[2] ). "A person is guilty of criminal sexual act in the third degree when[,] ... being [21] years old or more, he or she engages in oral sexual conduct or anal sexual conduct with a person less than [17] years old" ( Penal Law § 130.40[2] ). "A person is guilty of incest in the third degree when he or she ... engages in sexual intercourse, oral sexual conduct or anal sexual conduct with a person whom he or she knows to be related to him or her ... as ... [a] descendant" ( Penal Law § 255.25 ).

At trial, a receptionist for the Columbia County Mental Health Department, located in the medical arts facility, recalled that, shortly before the incident, defendant came into the facility inquiring whether his appointment was at 2:00 p.m. and she confirmed that it was not.² A physician and three employees at the medical arts facility testified that, at approximately 2:00 p.m. on the day of the incident, a female was calling for help. Each of the witnesses testified that he or she observed the deceased victim on the lobby floor and that defendant was stabbing her. A relative of one of the employees stated that she witnessed defendant in the medical arts facility parking lot as he was leaving the building and that he appeared casual in his demeanor, as he walked in front of her car, continued through the parking lot and down a side street. A technical sergeant and K–9 program specialist with the State Police testified that he and his canine partner responded to the medical arts facility on the day of the stabbing and that his canine alerted law enforcement to a grassy area, just off the parking lot, wherein the sergeant recovered a bloody screwdriver. A coroner's physician with expertise in forensic pathology testified that he performed the autopsy on the deceased victim and concluded that the cause of her death was blood loss from extensive stab wounds to the body – a minimum of 35 – including one that went through her jugular vein.

An investigator with the State Police testified that he reviewed all surveillance tapes, including a tape from Walmart, depicting defendant after the stabbing. The Walmart tape revealed defendant purchasing sweatpants, changing into the sweatpants in his car, and throwing out his blood-soiled jeans. This same investigator also testified that he reviewed audio recordings for outgoing calls made by defendant while in jail as well as letters written by defendant to the minor victim while he was incarcerated. Several of the calls referenced his relationship with the minor victim and the letters described, in lurid detail, its sexual nature. A second State Police investigator recalled that when defendant's cell phone was recovered from defendant's vehicle, the battery was missing. A correction officer at the Columbia County jail testified that defendant admitted to him that he had killed the deceased victim but that he did not do it on purpose, and that he had an intimate relationship with the minor victim.

The minor victim testified that she did not turn 17 until May 2014, that defendant was her biological father, that she moved to New York in December 2013 to live with defendant and the deceased victim, and that she was subjected to sexual conduct by defendant for two years beginning in January 2014. She also testified that, at one point during that period, she cohabited with defendant in a motel.³ The minor victim averred that during this two-year period, she and defendant engaged in regular intercourse and oral sexual...