People v. Culver

• Decision Date: 10 June 1993
• Citation: 598 N.Y.S.2d 832,192 A.D.2d 10
• Parties: The PEOPLE of the State of New York, Respondent, v. Ernest G. CULVER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 832

598 N.Y.S.2d 832

192 A.D.2d 10

The PEOPLE of the State of New York, Respondent, v. Ernest G. CULVER, Appellant.

Supreme Court, Appellate Division,

Third Department.

June 10, 1993.

Francis A. Discenza, Cortland, for appellant.

Richard J. Shay, Dist. Atty., Cortland, for respondent.

Before WEISS, P.J., and MIKOLL, YESAWICH, LEVINE and MERCURE, JJ.

WEISS, Presiding Justice.

Appeal from a judgment of the County Court of Cortland County (Mullen, J.), rendered February 20, 1992, upon a verdict convicting defendant of the crime of murder in the second degree.

In a three-count indictment defendant was accused of (1) murder in the second degree by evincing a depraved indifference to human life, (2) murder in the second degree in the furtherance of the crime of robbery, and (3) robbery in the first degree by forcibly stealing currency and in the course of which he stabbed the victim with a deadly weapon. The facts show that on March 22, 1991, defendant and his brother Ramos Culver walked into the Cortland County Sheriff's Office and told Deputy Sheriff Albert Stephens they wanted to talk to an officer about "[a] dead body at 20 Union Street". Culver stated that on March 19, 1991, he and defendant had been staying with the victim in his apartment and that Culver fell asleep after becoming inebriated; he was awakened by defendant who said that the victim had "made sexual advances toward him, told him he was cute, and wanted to have sex with him". Defendant then interrupted Culver's recitation and said "I had to use a knife" and "I lost it, I had to use a knife". At that point Stephens read Miranda warnings to defendant and Culver and called the City of Cortland Police. Sergeant Richard McMullin arrived and spoke to defendant and Culver and, without making an arrest, asked them to accompany him to the police department to continue the discussion. Prior to a consensual pat-down, defendant gave McMullin a pocket knife and when asked if that particular knife had been used in the incident, defendant responded, "No, that's my knife. I didn't use that."

Three police officers then went to 20 Union Street where they found the victim's body in apartment No. 6. The victim lay dead on a couch and one of the officers testified that he observed nothing to indicate that a struggle had occurred. The lights were on, the television was playing, several knives were scattered around the room and the victim's open (but empty) wallet was lying near his body. The report of an autopsy performed by Humphrey Germaniuk, a Medical Examiner, showed that knives were lodged in the victim's right shoulder, his chest and his right nipple and that 19 separate knife wounds had been inflicted. The cause of death was determined to be multiple stab wounds. The jury found defendant guilty of murder in the second degree for killing the victim with a depraved indifference to human life (Penal Law § 125.25[2]. On this appeal, defendant has asserted 19 separate arguments for reversal, not all of which require extended discussion by this court.

Initially, we reject the argument that the verdict was not supported by sufficient evidence and that it was against the weight of the evidence. We have been instructed that when both the legal sufficiency and the weight of trial evidence have been challenged, each requires a discrete analysis (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). As to the former, our examination of the record satisfies us that the verdict was amply supported by sufficient evidence of defendant's guilt. Inasmuch as the jury found that he acted with a depraved indifference to human life by recklessly engaging in conduct which created a grave risk of death and did thereby cause the victim's death (Penal Law § 125.25[2], we now view the evidence in a light most favorable to the People in our objective assessment of defendant's conduct (see, People v. Roe, 74 N.Y.2d 20, 24, 544 N.Y.S.2d 297, 542 N.E.2d 610) and ascertain whether such conduct was imminently dangerous and posed a very high risk of death to the victim (see, People v. Longo, 182 A.D.2d 1019, 1020, 582 N.Y.S.2d 832, lv. denied, 80 N.Y.2d 906, 588 N.Y.S.2d 831, 602 N.E.2d 239).

The testimony of witnesses showed that both brothers had been drinking heavily with the victim and possessed considerable cash after the time of the alleged attack. Defendant and Culver went on a free-spending spree, presumably using the proceeds of the victim's recently cashed Social Security check. Defendant indicated to William Fellows that "he had hurt someone pretty badly" and gave the victim's ring to Fellows. The inculpatory statements made to the police, supported by testimony from the Medical Examiner describing the three knives found imbedded in the victim's body, and the multitude of wounds inflicted, combine to provide evidence sufficient to support the jury verdict. We find existing a valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial (see, People v. Bleakley, supra, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). We also find, as a matter of law, that the weight of the evidence adduced at trial was inconsistent with defendant's hypothesis of innocence and satisfied the prosecution's burden of proof requirements for every element of the crime charged and upon which defendant was found guilty (see, id.; People v. Loliscio, 187 A.D.2d 172, 593 N.Y.S.2d 991).

Having thus found, we now reject defendant's contention that the indictment lacked explanation sufficient to apprise him of the nature of the accusation against him. The validity of the order denying his omnibus motion to dismiss the indictment on the ground of noncompliance with CPL 200.50 is not reviewable upon appeal from the ensuing judgment of conviction which is based on legally sufficient evidence (CPL 210.30[6]; People v. Bey, 179 A.D.2d 905, 906-907, 579 N.Y.S.2d 187, lv. denied, 79 N.Y.2d 918, 582 N.Y.S.2d 78, 590 N.E.2d 1206, 79 N.Y.2d 1046, 584 N.Y.S.2d 1014, 596 N.E.2d 412). Moreover, we find the indictment sufficiently apprised defendant of "where, when and what the defendant did" (People v. Laporte, 184 A.D.2d 803, 804, 584 N.Y.S.2d 662, lv. denied, 80 N.Y.2d 905, 588 N.Y.S.2d 831, 602 N.E.2d 239). Equally unavailing are defendant's contentions that he had been wrongfully denied a bill of particulars which, if ordered, would necessarily have provided the evidence which the prosecution needed to prove the elements of the crime (see, CPL 200.95[1][a]; Preiser, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 11A, CPL 200.95, at 539). Similarly unpersuasive is the contention of the inadequacy of the prosecution's opening statement, which we find provided the jury with the nature of the charges to be tried and enabled them to intelligently understand the case (see, People v. Kurtz, 51 N.Y.2d 380, 384, 434 N.Y.S.2d 200, 414 N.E.2d 699, cert. denied, 451 U.S. 911, 101 S.Ct. 1983, 68 L.Ed.2d 301; People v. Chamberlain, 178 A.D.2d 783, 784, 578 N.Y.S.2d 270, lv. denied, 79 N.Y.2d 945, 583 N.Y.S.2d 199, 592 N.E.2d 807).

We next consider whether County Court erred by reversing its previous ruling suppressing defendant's statement made to McMullin ("No, that's my knife. I didn't use that.") and held that good cause had been shown (CPL 710.30[2] for the failure by the People to have given timely notice of its intent to offer the statement (CPL 710.30[1]. Concededly, the notice was not given within 15 days of the arraignment and absent a demonstration of good cause for the delay, the statement would therefore be inadmissible against defendant at trial (CPL 710.30[1], [2]; People v. Amparo, 73 N.Y.2d 728, 729, 535 N.Y.S.2d 588, 532 N.E.2d 94). Neither of the two exceptions to inadmissibility (good cause for delay [see, People v. Sian, 167 A.D.2d 435, 435-436, 561 N.Y.S.2d 791] or an unsuccessful suppression motion made despite the lack of timely notice [see, People v. Mullins, 179 A.D.2d 48, 53-54, 582 N.Y.S.2d 810, lv. denied, 80 N.Y.2d 835, 587 N.Y.S.2d 920, 600 N.E.2d 647] are present in this case. However, because the error was not of constitutional dimension and we have already found the proof of guilt to be overwhelming, the error is harmless inasmuch as there is no significant probability that the jury would have acquitted defendant in the absence of the statement (see, People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Willsey, 148 A.D.2d 764, 767, 538 N.Y.S.2d 342, lv. denied, 74 N.Y.2d 749, 545 N.Y.S.2d 124, 543 N.E.2d 767).

We find no error in the rejection of testimony to prove that the victim had been charged with sodomy in the first degree (Penal Law § 130.50) in the Town of Junius Justice Court on September 12, 1978, pleaded guilty to sexual abuse in the second degree and was sentenced to one year in jail. County Court refused to admit testimony from Cecelia Weitzel, who had testified in a Family Court proceeding brought against the victim for abuse of his six-year-old daughter. We find that County Co...