People v. Powell

• Decision Date: 30 December 2004
• Docket Number: 10373.
• Citation: 787 N.Y.S.2d 480,2004 NY Slip Op 09723,13 A.D.3d 975
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WARREN POWELL, Appellant.
• Court: New York Supreme Court — Appellate Division

13 A.D.3d 975

787 N.Y.S.2d 480

2004 NY Slip Op 09723

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WARREN POWELL, Appellant.

10373.

Appellate Division of the Supreme Court of the State of New York, Third Department.

December 30, 2004.

Appeal from a judgment of the County Court of Columbia County (Leaman, J.), rendered October 10, 1997, upon a verdict convicting defendant of the crime of murder in the second degree.

CREW III, J.P.

Defendant's wife disappeared in October 1994 when she was six months pregnant. In 1996, her remains were discovered in a hockey bag lying in the ebbing tide of the Hudson River. A police investigation ensued, at the conclusion of which defendant was indicted and charged with two counts of second degree murder for the strangulation death of his wife. Following a jury trial, defendant was found guilty of intentional murder and sentenced to a term of 25 years to life. Defendant now appeals.

Defendant first contends that County Court erred in denying his motion to suppress two statements made by him to the police. We disagree. Regarding defendant's first statement, he claims that it was made after he invoked his right to remain silent. While it is clear that once a defendant invokes his right to remain silent, that decision must be scrupulously honored (see e.g. Miranda v Arizona, 384 US 436 [1966]) and any statement obtained thereafter is inadmissible (see People v Dickinson, 43 AD2d 612, 615 [1973]), we need note only that defendant's failure to respond to some questions while answering others does not constitute an unequivocal invocation of the right to remain silent (see People v Sprague, 267 AD2d 875, 879 [1999], lv denied 94 NY2d 925 [2000]).

Defendant further asserts that County Court erred in permitting certain statements made by him after what he contends was an unlawful, warrantless arrest for reckless endangerment. To the contrary, the record reveals that the State Troopers who effected defendant's arrest were aware of the fact that charges had been filed against defendant for reckless endangerment. County Court properly determined that the Troopers were warranted in making the arrest for a crime where they had reasonable cause to believe that defendant had committed such crime, whether in their presence or otherwise (see CPL 140.10 [1] [b]).

Defendant next contends that County Court erred in granting the prosecutor's challenge for cause of a prospective juror after the prosecutor had exercised her challenges for cause and defendant had exercised his challenges for cause, as well as his peremptory challenges. The record reveals that the prospective jurors had been examined extensively by the court, the prosecutor and, to a lesser extent, defense counsel. Thereafter, the prosecution successfully exercised a number of challenges for cause, as did defense counsel. Following those challenges, the prosecutor advised the court that juror number 32, a criminal defense attorney, represented her sister in a civil matter and wanted to put it on the record for defendant's benefit. The court responded "[d]uly noted" and, inasmuch as the prosecutor already had exhausted her peremptory challenges, entertained such challenges by defendant. Defendant exercised five such challenges, but not as to juror number 32. Before the court could swear in the jury, the prosecutor stated, "Judge, I do have a cause situation. [Juror 32] volunteered . . . and I thought Mr. Kindlon would challenge him for cause . . . that he has ongoing litigation with my office . . . I think it is impossible for him to sit fairly and impartially . . . ." The court, over the strenuous objection of defense counsel, then brought the juror back for further questioning, after which the court granted the challenge for cause.

The Criminal Procedure Law specifically delineates the order in which challenges are to occur. It provides that upon completion of examination of the prospective jurors, both parties, commencing with the People, may challenge the prospective jurors for cause. After both parties have had an opportunity to so challenge, the court must permit peremptory challenges commencing with the People and followed by defendant. In no event may the People exercise a peremptory challenge after the defendant has exercised his or her peremptory challenges (see CPL 270.15 [2]). It has been held that...