People v. Ford

• Decision Date: 22 December 2011
• Citation: 2011 N.Y. Slip Op. 09208,90 A.D.3d 1299,935 N.Y.S.2d 368
• Parties: The PEOPLE of the State of New York, Respondent, v. George FORD Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09208

90 A.D.3d 1299

935 N.Y.S.2d 368

The PEOPLE of the State of New York, Respondent,

v.George FORD Jr., Appellant.

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

Dec. 22, 2011.

Paul J. Connolly, Delmar, for appellant, and appellant pro se.

Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), for respondent.

Before: ROSE, J.P., LAHTINEN, KAVANAGH, McCARTHY and GARRY, JJ.

LAHTINEN, J.

Appeal from a judgment of the County Court of Chenango County (Cawley, J.), rendered June 11, 2009, convicting defendant following a nonjury trial of the crime of murder in the second degree.

During the early morning hours of July 8, 2007, defendant ran over and killed the 12–year–old female victim with his Ford truck on Will Warner Road, an unlit, dirt road in the Town of Otselic, Chenango County. Defendant had picked up the victim at her home shortly after 11:00 P.M. on July 7, 2007 to babysit his three-year-old child. There was considerable conflicting evidence regarding what transpired between when defendant picked up the victim and when he arrived with her dead body at about 4:30 A.M. on July 8, 2007 at the hospital. Defendant contended that he accidentally ran over the victim at approximately 12:00 A.M. when he attempted to turn his truck around at a time when she was outside the vehicle to view horses.

Police learned early in their investigation that defendant's wife, suspecting he was engaged in an extramarital affair, had previously placed a global position system (hereinafter GPS) tracking key in defendant's truck. Information from the GPS, together with additional evidence gathered during the investigation, resulted in police concluding that defendant had taken the victim to the location of an uninhabited seasonal residence on Will Warner Road and stayed there for three hours (from about 12:00 A.M. to 3:00 A.M.), the victim attempted to escape from him on foot, he found her a short distance from the seasonal residence and intentionally ran over her with his truck. As a result, although defendant had initially been arrested for reckless endangerment, he was eventually indicted on a single count of murder in the second degree. Following a nonjury trial, County Court found defendant guilty of the charged crime. Defendant was sentenced to a term of 25 years to life in prison and now appeals.

Defendant initially argues that there was inadequate proof that he intended to kill the victim and, thus, his conviction was not supported by legally sufficient evidence and was against the weight of the evidence. “ Generally, including a circumstantial evidence case, the standard of [appellate] review in determining whether the evidence before the [factfinder] was legally sufficient ... is whether the evidence, viewed in the light most favorable to the People, could lead a rational trier of fact to conclude that the elements of the crime had been proven beyond a reasonable doubt” ( People v. Rossey, 89 N.Y.2d 970, 971, 655 N.Y.S.2d 861, 678 N.E.2d 473 [1997] [internal quotation marks and citation omitted]; see People v. Cancer, 16 A.D.3d 835, 836–837, 791 N.Y.S.2d 207 [2005], lv. denied 5 N.Y.3d 826, 804 N.Y.S.2d 41, 837 N.E.2d 740 [2005] ). Intent may be inferred from a defendant's actions and surrounding circumstances ( see People v. Rodriguez, 17 N.Y.3d 486, 489–490, 933 N.Y.S.2d 631, 957 N.E.2d 1133 [2011]; People v. Molina, 79 A.D.3d 1371, 1376, 914 N.Y.S.2d 331 [2010], lv. denied 16 N.Y.3d 861, 923 N.Y.S.2d 423, 947 N.E.2d 1202 [2011]; CJI.2d [N.Y.] Culpable Mental States–Intent).

Defendant and his wife had been at a party on July 7, 2007 during which defendant consumed alcohol as well as cocaine. He left the party early because of a stomach problem, but his wife remained at the party. He went to their home, changed into pajama bottoms and, intending to return to the party, picked up the victim to babysit. Upon arriving at his home with the victim, defendant's wife unexpectedly returned home from the party, so defendant set out to drive the victim about one mile north on Route 26 back to her home. According to a statement that defendant gave to police, the victim inquired about seeing horses, so he turned right onto Will Warner Road and headed east until stopping in the vicinity of horses. He claimed that the victim exited the truck to get a better view and, while making a “k-turn,” he got stuck, accelerated the truck, got stuck again and, when he got out, observed that he had run over the victim. He stated that this occurred around midnight and the delay of over four hours in transporting the victim to the hospital was caused by difficulty putting her body in the truck and getting lost en route to the hospital.

The police investigation revealed problems with defendant's version of events. The place where the victim died was a considerable distance from any horses and in an area of poor visibility to see the field. Evidence at the scene indicated that the truck hit the victim while traveling west (downhill) on Will Warner Road, not east (uphill) as claimed by defendant. Defendant denied being at the nearby seasonal residence on Will Warner Road, but tracks left by his truck, as well as a hypodermic needle with traces of his blood, were found at such location. The GPS reading of defendant's movements in the truck were, from the time he first picked up the victim, at odds with his version. Among other discrepancies, the GPS revealed that, when defendant left his home to take the victim to her home, he turned from Route 26 onto Stage Road. Stage Road runs basically parallel—and south of—Will Warner Road and then veers north to where Will Warner Road intersects it at a T intersection. He took a left at the intersection of Stage Road and Will Warner Road and headed west on Will Warner Road, then stopped for about three hours at the seasonal residence.

Shortly before 3:00 A.M., the truck left the residence, turned left (east) on Will Warner Road, traveled for a short distance, turned around and moved rapidly back to the seasonal residence and continued (now going west) past the residence, steadily decreasing its speed, and slowing to 4 to 6 miles per hour for about a minute. An expert produced by the People testified that, at 3:03 A.M., while approaching the scene of the victim's death, the GPS deflected to the left,...