People v. Mero

• Docket Number: 110765, 112288
• Decision Date: 22 November 2023
• Citation: 221 A.D.3d 1242,201 N.Y.S.3d 258
• Parties: The PEOPLE of the State of New York, Respondent, v. Edward MERO, Appellant.
• Court: New York Supreme Court — Appellate Division

221 A.D.3d 1242

201 N.Y.S.3d 258

The PEOPLE of the State of New York, Respondent,

v.Edward MERO, Appellant.

110765, 112288

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

Calendar Date: September 6, 2023

Decided and Entered: November 22, 2023

Hug Law, PLLC, Albany (Matthew C. Hug of counsel), for appellant.

P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), for respondent.

Before: Clark, J.P., Aarons, Reynolds Fitzgerald, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Clark, J.P. Appeals (1) from a judgment of the County Court of Albany County(Peter A. Lynch, J.), rendered February 2, 2018, upon a verdict convicting defendant of the crimes of murder in the second degree (two counts) and tampering with physical evidence (two counts), and (2) by permission, from an order of the Supreme Court(Peter A. Lynch, J.), entered March 6, 2020 in Albany County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, after a hearing.

In 2017, defendant was arrested and charged with two counts of murder in the second degree and two corresponding counts of tampering with physical evidence.The first set of charges stemmed from the death of defendant's roommate (hereinafter victim A), whose body was found after a fire at their shared apartment in January 2013, while the second set of charges stemmed from the death of victim B, whose remains were found in a shallow grave in May 2015.Defendant filed an omnibus motion seeking, among other things, to sever the counts related to each victim, which motion the People opposed.County Court denied that branch of the motion, finding that defendant had failed to establish that good cause existed to support severance.Defendant thereafter sought to suppress statements that he allegedly made to two incarcerated individuals, which motion County Court denied after a hearing.After a jury trial, defendant was found guilty as charged, and he was sentenced to two consecutive prison terms of 25 years to life for the murder in the second degree convictions and to lesser prison terms for the tampering with physical evidence convictions.

In December 2019, defendant moved to vacate the judgment of conviction pursuant to CPL 440.10, contending that his trial counsel had an improper business relationship with one of the assistant district attorneys (hereinafter the ADA).Specifically, defendant alleged that an impermissible conflict of interest existed because the ADA – who was actively involved in defendant's prosecution – had an ongoing business relationship with trial counsel whereby trial counsel paid the ADA to write appellate briefs for a number of her clients.Following a hearing, Supreme Court denied defendant's motion finding that, while the relationship presented a potential conflict of interest, it did not operate upon the defense.Defendant appeals from the judgment of conviction and, by permission, from the denial of his CPL article 440 motion.

Defendant first challenges both the legal sufficiency and weight of the evidence supporting his convictions."When assessing the legal sufficiency of a jury verdict, we view the facts in the light most favorable to the People and examine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of [each] crime proved beyond a reasonable doubt"( People v. Lundy,218 A.D.3d 839, 841, 193 N.Y.S.3d 339[3d Dept.2023][internal quotation marks and citations omitted];seePeople v. Watson,174 A.D.3d 1138, 1139, 105 N.Y.S.3d 199[3d Dept.2019], lv denied34 N.Y.3d 955, 110 N.Y.S.3d 658, 134 N.E.3d 657[2019] ).

When "conducting a weight of the evidence review, we must view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not, 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. Barzee,190 A.D.3d 1016, 1017–1018, 138 N.Y.S.3d 718[3d Dept.2021][internal quotation marks and citations omitted], lv denied36 N.Y.3d 1094, 144 N.Y.S.3d 110, 167 N.E.3d 1245[2021];seePeople v. Butkiewicz,175 A.D.3d 792, 793, 107 N.Y.S.3d 181[3d Dept.2019], lv denied34 N.Y.3d 1076, 116 N.Y.S.3d 165, 139 N.E.3d 823[2019] ).Where a credibility dispute arises, "we give great deference to the factfinder's credibility assessments, based on the factfinder's opportunity to view the witnesses, hear the testimony and observe demeanor"( People v. Bickham,189 A.D.3d 1972, 1973, 138 N.Y.S.3d 693[3d Dept.2020][internal quotation marks and citations omitted], lv denied36 N.Y.3d 1095, 144 N.Y.S.3d 112, 167 N.E.3d 1247[2021];seePeople v. Jones,202 A.D.3d 1285, 1286, 162 N.Y.S.3d 559[3d Dept.2022] ).As relevant here, a person is guilty of murder in the second 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"( Penal Law § 125.25[1] ).A person is guilty of tampering with physical evidence, as relevant here, when "[b]elieving that certain physical evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent such production or use, he[or she] suppresses it by any act of concealment, alteration or destruction"( Penal Law § 215.40[2] ).

As to the charges relating to victim A, the People proffered the testimony of a neighbor who reported hearing what sounded like a man and a woman arguing in the street shortly before the fire.An Albany Fire Department(hereinafter AFD) investigator testified that the fire originated in victim A's bedroom.Another AFD investigator testified that, although the fire was officially classified as "accidental,"he believed it should have been categorized as "undetermined."An Albany Police Department(hereinafter APD) investigator testified that, shortly after the fire was extinguished, defendant appeared visibly upset and reported that, earlier in the night, victim A had been inebriated so he helped her up the stairs toward her bedroom.According to that investigator, defendant reported that sometime between 2:00 a.m. and 2:30 a.m., he left the apartment to "drive around and clear his head," then ended up sleeping in his car in his parents’ driveway.At the time, defendant was employed with the Albany Water Department(hereinafter AWD) and, according to several of his coworkers, defendant would jokingly boast that he could start a fire and burn down a house without getting caught, and he made these comments both before and after the fire.

The medical examiner who conducted an autopsy of victim A's body testified that his external examination was limited by the charred condition of her remains.He explained that although fire victims would often have carboxyhemoglobin levels above 50% and soot in their airways, victim A's carboxyhemoglobin was 4% and her trachea was "basically soot free."In the end, the medical examiner opined, to a reasonable degree of medical certainty, that the cause of victim A's death was severe thermal burns.The People also proffered the testimony of two incarcerated individuals, one of whom testified that defendant admitted to having killed victim A, while the other testified that defendant denied such killing.Regarding defendant's assertion that his convictions relating to victim A are premised on circumstantial evidence, "we do not distinguish between direct or circumstantial evidence in conducting a legal sufficiency and/or weight of the evidence review"( People v. Truitt,213 A.D.3d 1145, 1147, 184 N.Y.S.3d 441[3d Dept.2023][internal quotation marks and citation omitted], lv denied39 N.Y.3d 1144, 188 N.Y.S.3d 455, 209 N.E.3d 1281[2023];seePeople v. Hines,97 N.Y.2d 56, 62, 736 N.Y.S.2d 643, 762 N.E.2d 329[2001] ).Viewing the evidence presented by the People – including defendant's comments to his AWD coworkers and his admission to one of the incarcerated individuals – in the light most favorable to the People, we find that a valid line of reasoning and permissible inferences exist from which a rational juror could conclude that defendant caused the death of victim A and then set the fire to destroy the physical evidence related to her death (seePeople v. Campbell,196 A.D.3d 834, 836–837, 149 N.Y.S.3d 720[3d Dept.2021], lv denied37 N.Y.3d 1025, 153 N.Y.S.3d 415, 175 N.E.3d 440[2021];People v. Stover,178 A.D.3d 1138, 1143–1144, 115 N.Y.S.3d 500[3d Dept.2019], lv denied34 N.Y.3d 1163, 120 N.Y.S.3d 249, 142 N.E.3d 1151[2020];People v. Stanford,130 A.D.3d 1306, 1308, 14 N.Y.S.3d 560[3d Dept.2015], lv denied26 N.Y.3d 1043, 22 N.Y.S.3d 172, 43 N.E.3d 382[2015] ).

With respect to the weight of the evidence, defendant proffered the testimony of a retired APD arson investigator, who testified that he had found no accelerants at the scene of the fire where the body of victim A was discovered.However, he did not determine the cause of the fire, as he retired before the investigation was completed.According to the retired investigator, he spoke to defendant at the scene and defendant had described victim A as very intoxicated.Defendant had also reported leaving the shared apartment to drive around and clear his head, and that he ended up staying at his parents’ home.On direct examination, victim A's coworker testified that he and the victim hung out the night of the fire and the two drank alcohol and smoked marihuana but, on cross-examination, he admitted that he had his nights mixed up and had actually seen her the night prior to the fire.An APD officer testified that, the night of the fire, he had responded to a domestic call but, on cross-examination, asserted that the disturbance was between a mother and a daughter.In light of the circumstantial...