People v. Kenyon

• Citation: 970 N.Y.S.2d 638,2013 N.Y. Slip Op. 05336,108 A.D.3d 933
• Parties: The PEOPLE of the State of New York, Respondent, v. William E. KENYON, Appellant.
• Decision Date: 18 July 2013
• Court: New York Supreme Court Appellate Division

108 A.D.3d 933

970 N.Y.S.2d 638

2013 N.Y. Slip Op. 05336

The PEOPLE of the State of New York, Respondent,

v.William E. KENYON, Appellant.

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

July 18, 2013.

Alexander W. Bloomstein, Hillsdale, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.

Before: ROSE, J.P., SPAIN, McCARTHY and EGAN JR., JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered December 2, 2010, upon a verdict convicting defendant of the crimes of manslaughter in the first degree and criminal trespass in the second degree.

At 4:24 a.m. on June 27, 2009, Kelly Wescott (hereinafter the victim) placed a 911 call indicating that defendant—her boyfriend—had kicked down the door to her apartment in the Village of Johnson City, Broome County and was refusing to leave. When a police officer arrived, he observed that the door frame and surrounding molding was damaged; defendant, however, was nowhere to be found. The victim declined to press charges, and the officer, who was scheduled to end his tour at 6:40 a.m., left the premises and briefed the next shift regarding the incident. Before doing so, the officer—noting that the damaged door was not “all that secure”—suggested that the victim prop a kitchen chair underneath the door knob “for extra security.”

At 7:41 a.m., patrol officer Todd Haven was dispatched to defendant's residence—also located in Johnson City—in response to a welfare complaint regarding defendant's two daughters. While en route, Haven was advised that dispatch had received a telephone call from defendant's brother indicating that defendant “was making statements that he [had] just killed his girlfriend.” Fellow officer Michael Mason also was assigned to the call. Upon arrival, defendant's brother admitted Haven and Mason to the residence, ¹ at which time they observed defendant sitting on a love seat drinking a beer. As the officers approached, defendant turned to one of his daughters and stated, “[T]his [will] be [my] last drink.” Haven, who recognized defendant, then said, “[H]ey, Billy, what's going on,” in response to which defendant indicated that “he [had] killed his girlfriend.” Specifically, defendant stated, “[We] were having wild sex and she pissed me off and I killed the f* * * * * * whore.”

Haven was aware of the earlier incident at the victim's apartment and, in an effort to clarify the situation, asked defendant whether the event to which he was referring occurred before or after the victim's prior 911 call. When defendant indicated that this incident occurred after the victim's 911 call, Haven stepped outside and advised dispatch to send officers to the victim's residence to check on her welfare. Mason then posed a similar question (“[W]hen did this ... take place?”) to defendant, who stated that the incident occurred “last night.” Pending notification of the victim's status, Haven and Mason handcuffed defendant and placed him in the back of Haven's patrol car. Mason stood outside the patrol vehicle to keep an eye on defendant, and Haven went back inside the residence to secure the scene. Defendant continued to make incriminating statements—both as he walked to and once he was inside of the patrol vehicle—the latter of which were captured by the vehicle's surveillance camera, which Mason activated shortly after placing defendant inside.

In the interim, officers were dispatched to the victim's residence. As the officers knocked on the door to the apartment, the door opened on its own, at which time they observed pieces of the broken door molding mixed with the remnants of a broken chair on the floor of the residence.² The officers then proceeded to the rear of the apartment, where they discovered the victim's body lying on a bed. Shortly after 9:00 a.m., defendant was transported to the local police station where—after being advised of his Miranda rights—he continued to make various statements. A subsequent autopsy disclosed that the victim's death resulted from “asphyxiation due to smothering.”

Defendant subsequently was indicted and charged with murder in the second degree and criminal trespass in the second degree. Following a jury trial, defendant was convicted of the lesser included offense of manslaughter in the first degree and criminal trespass in the second degree. At the conclusion of a lengthy sentencing hearing, defendant was sentenced as a persistent felony offender to concurrent terms of one year for the criminal trespass conviction and 25 years to life for the manslaughter conviction. Defendant now appeals.

We affirm. Initially, we reject defendant's assertion that County Court erred in failing to suppress his various statements made to law enforcement officials. “[T]he safeguards required by Miranda are not triggered unless a suspect is subject to custodial interrogation” ( People v. Lewis, 83 A.D.3d 1206, 1207, 920 N.Y.S.2d 846 [2011],lv. denied17 N.Y.3d 797, 929 N.Y.S.2d 105, 952 N.E.2d 1100 [2011] [internal quotation marks and citation omitted] ). Here, defendant was not in custody when Haven and Mason initially spoke with him at his residence, and defendant's statements—made in response to the brief investigatory questions posed by the officers in an effort to clarify precisely what had transpired—were not the product of a custodial interrogation ( see People v. Smith, 89 A.D.3d 1126, 1127, 933 N.Y.S.2d 413 [2011],lv. denied18 N.Y.3d 962, 944 N.Y.S.2d 491, 967 N.E.2d 716 [2012];People v. Cordato, 85 A.D.3d 1304, 1309, 924 N.Y.S.2d 649 [2011],lv. denied17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94 [2011];People v. Steinhilber, 48 A.D.3d 958, 959, 852 N.Y.S.2d 437 [2008],lv. denied10 N.Y.3d 871, 860 N.Y.S.2d 497, 890 N.E.2d 260 [2008];People v. Brand, 13 A.D.3d 820, 822, 787 N.Y.S.2d 169 [2004],lv. denied4 N.Y.3d 851, 797 N.Y.S.2d 425, 830 N.E.2d 324 [2005];cf. People v. Hayes, 60 A.D.3d 1097, 1100–1101, 874 N.Y.S.2d 324 [2009],lv. denied12 N.Y.3d 925, 884 N.Y.S.2d 707, 912 N.E.2d 1088 [2009];People v. Butcher, 38 A.D.3d 942, 943, 830 N.Y.S.2d 844 [2007],lv. denied9 N.Y.3d 841, 840 N.Y.S.2d 767, 872 N.E.2d 880 [2007];People v. Baker, 27 A.D.3d 887, 888, 811 N.Y.S.2d 471 [2006] ).³ Hence, suppression of those statements was not warranted.

As for the statements made by defendant once he was handcuffed and escorted to/placed in Haven's patrol vehicle, “spontaneous statements made while in custody which are not the product of questioning or its functional equivalent clearly are admissible regardless of whether Miranda warnings were given” ( People v. Starks, 37 A.D.3d 863, 864, 828 N.Y.S.2d 700 [2007] [internal quotation marks and citations omitted]; accord People v. Rabideau, 82 A.D.3d 1283, 1284, 918 N.Y.S.2d 247 [2011],lv. denied17 N.Y.3d 799, 929 N.Y.S.2d 107, 952 N.E.2d 1102 [2011];see People v. Henderson, 74 A.D.3d 1567, 1569, 903 N.Y.S.2d 589 [2010],mod.77 A.D.3d 1168, 909 N.Y.S.2d 407 [2010];People v. Scott, 47 A.D.3d 1016, 1019–1020, 849 N.Y.S.2d 335 [2008],lv. denied10 N.Y.3d 870, 860 N.Y.S.2d 496, 890 N.E.2d 259 [2008] ). Contrary to defendant's assertion, Mason's subsequent and occasional inquiries as to defendant's welfare did not constitute interrogation.⁴ Finally, any statements made by defendant at the police station after he was advised of and waived his Miranda warnings clearly were not subject to suppression ( see People v. Culver, 69 A.D.3d 976, 977, 893 N.Y.S.2d 327 [2010];People v. Mann, 41 A.D.3d 977, 979–980, 839 N.Y.S.2d 247 [2007],lv. denied9 N.Y.3d 924, 844 N.Y.S.2d 179, 875 N.E.2d 898 [2007] ). To the extent that defendant now suggests that he was too intoxicated to validly waive his Miranda rights, this argument—assuming it has been preserved for our review—is belied by the testimony adduced at the suppression hearing ( see People v. Smith, 89 A.D.3d at 1128, 933 N.Y.S.2d 413;People v. Scott, 47 A.D.3d at 1020, 849 N.Y.S.2d 335). Accordingly, County Court properly denied defendant's motion to suppress the challenged statements.

As for defendant's request for a change of venue, defendant improperly brought his motion before County Court, rather than this Court ( seeCPL 230.20[2] ). Moreover, “because the motion was made prior to jury selection, it was premature” ( People v. Brockway, 255 A.D.2d 988, 988, 683 N.Y.S.2d 671 [1998],lv. denied93 N.Y.2d 967, 695 N.Y.S.2d 52, 716 N.E.2d 1097 [1999] ), and the record does not reflect that defendant thereafter revisited the issue with County Court. Accordingly, this issue has not been preserved for our review ( see People v. Hardy, 38 A.D.3d 1169, 1169–1170, 832 N.Y.S.2d 722 [2007],lv. denied9 N.Y.3d 865, 840 N.Y.S.2d 895, 872 N.E.2d 1201 [2007] ). Defendant's related assertion—that County Court improperly denied three of his challenges for cause—is unavailing. Even assuming that County Court erred in this regard, defendant concedes that he did not exhaust all of his peremptory challenges during jury selection; therefore, any error in this regard would not warrant reversal ( see People v. Plaza, 60 A.D.3d 1153, 1154, 874 N.Y.S.2d 621 [2009],lv. denied12 N.Y.3d 919, 884 N.Y.S.2d 700, 912 N.E.2d 1081 [2009];People v. Doherty, 37 A.D.3d 859, 860, 828 N.Y.S.2d 695 [2007],lv. denied9 N.Y.3d 843, 840 N.Y.S.2d 769, 872 N.E.2d 882 [2007] ).

Defendant's various challenges to County Court's evidentiary rulings are equally unpersuasive. To the extent that defendant contends that the admission of the victim's 911 call violated his constitutional right to confront the witnesses against him ( see Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004] ), we note that “[t]he statements on the tape were not testimonial, as their purpose was to enable the police to meet an ongoing emergency and apprehend the perpetrator, not to provide evidence for later prosecution” ( People v. Shaver, 86 A.D.3d 800, 802, 927 N.Y.S.2d 226 [2011],lv. denied18 N.Y.3d...