People v. Wlasiuk

• Decision Date: 11 February 2016
• Citation: 136 A.D.3d 1101,24 N.Y.S.3d 787
• Parties: The PEOPLE of the State of New York, Respondent, v. Peter M. WLASIUK, Appellant.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 1101
24 N.Y.S.3d 787

The PEOPLE of the State of New York, Respondent,
v.
Peter M. WLASIUK, Appellant.

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

Feb. 11, 2016.

24 N.Y.S.3d 788

Mitch Kessler, Cohoes, for appellant.

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

Before: LAHTINEN, J.P., McCARTHY, EGAN JR., LYNCH and CLARK, JJ.

CLARK, J.

136 A.D.3d 1101

Appeal from a judgment of the County Court of Chenango County (Cawley, J.), rendered October 26, 2012, upon a verdict convicting defendant of the crime of murder in the second degree.

After his third jury trial, defendant was once again convicted

136 A.D.3d 1102

of murdering his wife (hereinafter the victim).¹ In the early morning hours of April 3, 2002, the Chenango County Sheriff's Department responded to a report that a motor vehicle had crashed into Guilford Lake in Chenango County. At the scene, defendant informed first responders that the victim had swerved to avoid a deer and, as a result, had accidentally driven his pick-up truck into the lake. Defendant asserted that he had managed to escape from the vehicle, but had been unsuccessful in his attempts to drag the victim to the surface after the vehicle submerged. The victim's body was ultimately recovered from the bottom of the lake and, despite efforts to resuscitate her at the scene, she was pronounced dead upon her arrival at the emergency room. The ensuing investigation revealed evidence that contradicted defendant's version of events and also implicated defendant as having murdered the victim at their home and staged a motor vehicle accident to cover up his crime. At the close of the third trial, defendant was again convicted as charged. Defendant was sentenced to a prison term of 25 years to life. He now appeals, and we affirm.

Defendant argues that, because the People's theory that he smothered the victim to death and then staged a motor vehicle accident to cover up his crime was pure speculation, the verdict was against the weight of the evidence. As relevant here, the People had to prove beyond a reasonable doubt that defendant caused the victim's death after having acted with the intent to do so (see

24 N.Y.S.3d 789

Penal Law § 125.25[1] ). While a contrary verdict would not have been unreasonable, considering that the jury could have believed defendant's version of events, we find defendant's convictions to be supported by the weight of the evidence (see People v. Green, 121 A.D.3d 1294, 1294–1295, 994 N.Y.S.2d 716 [2014], lv. denied 25 N.Y.3d 1164, 15 N.Y.S.3d 296, 36 N.E.3d 99 [2015] ; People v. Vanderhorst, 117 A.D.3d 1197, 1198–1200, 984 N.Y.S.2d 688 [2014], lv. denied 24 N.Y.3d 1089, 1 N.Y.S.3d 16, 25 N.E.3d 353 [2014] ).

Here, among other things, defendant's contradictory statements to law enforcement personnel and others, the physical evidence concerning the victim's hair and plant material,² the testimony concerning an argument between defendant and the victim on the night of the victim's death, the testimony of the People's accident reconstruction expert, and the findings by the forensic pathologist who performed the autopsy on the victim

136 A.D.3d 1103

provided ample evidence that defendant intentionally caused the victim's death. Viewing the evidence in a neutral light and according deference to the jury's ability to " view the witnesses, hear the testimony and observe demeanor, we defer to [its] credibility determination and conclude that defendant's conviction[ was] not against the weight of the evidence" (People v. Lanier, 130 A.D.3d 1310, 1311, 15 N.Y.S.3d 241 [2015], lv. denied 26 N.Y.3d 1009, 20 N.Y.S.3d 550, 42 N.E.3d 220 [2015] [internal quotation marks and citation omitted] ).

We are not persuaded by defendant's contention that the prosecutor's improper comments during summation resulted in an unfair trial. Although we can agree that the summation was not error free and that some of the comments were improper, reversal is required only where the prosecutorial misconduct results in substantial prejudice to the defendant to such an extent that he or she was deprived of due process of law (see People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564 [1976] ; People v. Newkirk, 75 A.D.3d 853, 857, 906 N.Y.S.2d 133 [2010], lv. denied 16 N.Y.3d 834, 921 N.Y.S.2d 198, 946 N.E.2d 186 [2011] ; People v. Shutter, 72 A.D.3d 1211, 1214, 899 N.Y.S.2d 389 [2010], lv. denied 14 N.Y.3d 892, 903 N.Y.S.2d 781, 929 N.E.2d 1016 [2010] ; People v. Robinson, 16 A.D.3d 768, 770, 790 N.Y.S.2d 586 [2005], lv. denied 4 N.Y.3d 856, 797 N.Y.S.2d 430, 830 N.E.2d 329 [2005] ). Such is not the case here.

In determining whether prosecutorial misconduct deprived a defendant of a fair trial, this Court considers "its severity and frequency, the corrective action taken, if any, and whether the result would likely have been the same in the absence of the conduct" (People v. Casanova, 119 A.D.3d 976, 979, 988 N.Y.S.2d 713 [2014] ; see People v. Goldston, 126 A.D.3d 1175, 1179, 5 N.Y.S.3d 600 [2015], lv. denied 25 N.Y.3d 1201, 16 N.Y.S.3d 524, 37 N.E.3d 1167 [2015] ). Here, County Court sustained most of defendant's objections, admonished the prosecutor outside the presence of the jury for improperly "vouch[ing] for the witnesses and suggest[ing] that [there was] a community effort" to prosecute defendant and emphasized to the jurors during its charge that it was their "recollection of the facts in evidence [that was] controlling [,] not what either attorney ha[d] stated during their summations." Although the prosecutor vouched for the credibility of some of the People's witnesses

24 N.Y.S.3d 790

by characterizing them as "good men and women" and "interested" and "concerned citizens," and invoked the word "community"—which was not the best practice—in the particular context of this trial, we view such remarks as a fair response to defendant's summation wherein counsel suggested that the People's witnesses were tailoring their testimony and possibly even colluding (see People v. Moye, 12 N.Y.3d 743, 744, 879 N.Y.S.2d 354, 907...