People v. Smith

• Decision Date: 03 November 2011
• Citation: 933 N.Y.S.2d 413,89 A.D.3d 1126,2011 N.Y. Slip Op. 07745
• Parties: The PEOPLE of the State of New York, Respondent, v. Bruce SMITH, Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 07745

89 A.D.3d 1126

933 N.Y.S.2d 413

The PEOPLE of the State of New York, Respondent,

v.Bruce SMITH, Appellant.

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

Nov. 3, 2011.

Alexander W. Bloomstein, Hillsdale, for appellant.

Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), for respondent.

Before: MERCURE, J.P., SPAIN, MALONE JR., KAVANAGH and McCARTHY, JJ.

SPAIN, J.

Appeal from a judgment of the County Court of Columbia County (Nichols, J.), rendered March 31, 2009, upon a verdict convicting defendant of the crimes of gang assault in the second degree and assault in the second degree.

On February 16, 2008, police responded to the apartment of Kari Cordato on State Street in the City of Hudson, Columbia County around 1:30 A.M. where they found Floyd Sanders, the victim, on a rear porch adjacent to the kitchen, unconscious and bleeding. Also present were Cordato and her housemate, Kevin Allen, defendant and his wife and several others, all friends; Cordato's five young children were asleep upstairs. The evidence established that sometime before midnight, defendant had confronted Sanders at Sanders' apartment about a handwritten list in which Sanders had reportedly explicitly documented his sexual abuse of many children, naming Cordato's eight-year-old daughter and defendant's 13–year–old stepdaughter. Defendant punched Sanders in the face several times, and then defendant escorted Sanders down the street to Cordato's apartment, followed minutes later by defendant's wife; Cordato and Allen were shown the list, Cordato recognized the handwriting as that of Sanders and defendant's daughter was summoned from her sleep and questioned about the abuse. Sanders was then severely beaten and died a week later due to blunt force trauma to the head.

Defendant, Cordato and Allen were jointly indicted for manslaughter in the first degree and gang assault in the first degree. Allen was granted a severance and tried separately. After a joint jury trial, defendant was convicted of the lesser included offenses of assault in the second degree and gang assault in the second degree, and now appeals. This Court affirmed Cordato's convictions for gang assault in the first degree and assault in the second degree ( People v. Cordato, 85 A.D.3d 1304, 924 N.Y.S.2d 649 [2011], lv. denied 17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94 [2011] ).

Initially, defendant challenges County Court's ruling, after a Huntley hearing, denying his motion to suppress statements he made to police on February 16, 2008. We perceive no grounds for disturbing the court's determination, which has a sound basis in the record. Defendant's initial incriminating statements to police—who had just responded to the potential crime scene in a crowded apartment and were investigating what had transpired—were admissible as noncustodial responses to brief, investigatory questions aimed at clarifying the situation ( see People v. Steinhilber, 48 A.D.3d 958, 959, 852 N.Y.S.2d 437 [2008], lv. denied 10 N.Y.3d 871, 860 N.Y.S.2d 497, 890 N.E.2d 260 [2008]; see also People v. Cordato, 85 A.D.3d at 1309, 924 N.Y.S.2d 649). The Huntley testimony established that defendant approached Officer Nicholas Pierro and asked to speak with him; the officer asked, “what's up[?]” and, in response, defendant said, referring to Sanders, “this guy is raping my daughter and [Cordato's] daughter.” The officer replied that they could “handle that later” but “need[ed] to know what happened to the guy on the back porch.” Defendant stated, “I did it. I beat his ass,” and the officer asked, “you're the one that beat him up[?]” and defendant replied, “yes, that a* *hole is raping little kids.” These statements, made around 1:35 A.M., were voluntary and noncustodial and no Miranda warnings were required.

Defendant was arrested shortly thereafter and taken to the police department where Pierro provided Miranda warnings around 1:59 A.M., which defendant indicated he understood, agreeing to speak with him. Pierro advised Detective James Delaney of the foregoing and, around 3:03 A.M., Delaney approached defendant, handcuffed in a holding cell, and said, “we need to talk about what happened to these kids”; defendant replied, “you don't understand, that's my 13–year–old daughter. I have to protect my family.” Around 3:30 A.M., defendant blurted out to Delaney from the holding cell remarks indicating his sense of unfairness that he should be going to jail for protecting his family. When Delaney asked defendant for his pants, shoes and socks for analysis, defendant remarked, “I could have saved you some trouble and bodied him right there. He's lucky I didn't.” Defendant remained in continuous custody and was not subject to coercive tactics in the short delay after he was advised of and waived his rights. Delaney was not required to advise him of his Miranda rights a second time, given Pierro's recent advisement and defendant's voluntary waiver thereof ( see People v. Carelli, 41 A.D.3d 1092, 1093, 838 N.Y.S.2d 708 [2007] ). Further, the 3:30 A.M. statements were not the product of police questioning but, rather, were spontaneously uttered and, as such, admissible ( see People v. Smith, 21 A.D.3d 587, 588, 800 N.Y.S.2d 636 [2005], lv. denied 5 N.Y.3d 833, 804 N.Y.S.2d 47, 837 N.E.2d 746 [2005] ). While the officers detected the odor of alcohol on defendant's breath, their testimony undermined any claim that defendant was so intoxicated as to have been incapable of understanding or voluntarily waiving his rights ( see People v. Meissler, 305 A.D.2d 724, 726, 759 N.Y.S.2d 255 [2003], lv. denied 100 N.Y.2d 644, 769 N.Y.S.2d 209, 801 N.E.2d 430 [2003] ).

At around 10:00 A.M., Detective John Funk provided defendant with Miranda warnings a second time, which defendant again waived, indicating that he wanted to be “straight” with police. Defendant then provided a narrative statement, recorded by Delaney, of the events of the prior night, admitting that he had hit Sanders at Sanders' apartment after seeing the list; defendant stated that after he escorted Sanders to Cordato's apartment and showed everyone the list, “I kept going at him and wanted him to tell me the truth. [Sanders] kept lying to me. I lost my temper. It stopped when [another friend present] broke it up and the police got there.” Defendant also admitted, “I didn't want it to go this far. I just wanted him to learn a lesson.” Despite defendant's contention that his written statement was involuntarily obtained, the testimony fully supports County Court's conclusion that he was re-Mirandized and voluntarily, knowingly and intelligently waived his rights and provided, and signed around 11:20 A.M., the written account of the assault ( see People v. Judware, 75 A.D.3d 841, 843–844, 906 N.Y.S.2d 139 [2010], lv. denied 15 N.Y.3d 853, 909 N.Y.S.2d 30, 935 N.E.2d 822 [2010] ). There was no evidence that defendant was threatened or coerced, asked for an attorney or objected to the questioning, or that the length or circumstances of the questioning rendered his responses involuntary ( id. at 844, 906 N.Y.S.2d 139). Thus, defendant's statements properly were ruled to be admissible in their entirety.¹

Next, we reject defendant's challenges to the legal sufficiency and weight of the evidence. Assault in the second degree required that defendant, “[w]ith intent to cause serious physical injury to another person, [caused] such injury to such person or to a third person” (Penal Law § 120.05[1] ). The jury was charged that defendant could be found criminally liable for the assault as an accomplice, i.e., if he acted with the mental culpability required for the assault and “solicit[ed], request[ed], command [ed], importune[ed], or intentionally aid[ed] [another] person to engage in such conduct” and such other person “engage[d] in conduct which constitute[d] [that] offense” (Penal Law § 20.00). Gang assault in the second degree required that defendant, acting with the intent to cause physical injury to another person, “cause[d] serious physical injury to such person or to a third person” while “aided by two or more persons actually present” (Penal Law § 120.06).

The People pursued the theory at trial that the assault on Sanders was an ongoing incident that started at Sanders' apartment and continued at Cordato's apartment. Indeed, the indictment, and later the jury instruction containing the lesser included offenses of which defendant was convicted, charged that all of the offenses occurred “on or about the 16th of February, 2008, in the City of Hudson,” and the charges were never limited to one apartment or the other.

Turning to the offenses, there was certainly 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 and as a matter of law satisfy the proof and burden requirements for every element of the crime [s]” of conviction ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [citation omitted] ). There was no dispute that defendant assaulted Sanders at Sanders' apartment, punching him in the face several times, and then escorted him to Cordato's apartment to expose the list and confront him in the presence of their friends, believing Cordato's young child was named on the list. It was also established that defendant was present in Cordato's apartment when Sanders was beaten by more than one among them. While defendant's wife denied seeing him ever actually strike Sanders at Cordato's place, her testimony—like Cordato's—placed defendant standing in the kitchen with Allen and others at a critical time, i.e., when Sanders was confronted with the list and after Cordato's daughter was summoned and questioned, when Allen and then Cordato hit Sanders. Defendant's wife testified that she left the kitchen to go upstairs and speak with the child and,...