PEOPLE v. PONDER

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

The PEOPLE of the State of New York, Respondent, v. Jerold L. PONDER, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  SCUDDER, P.J., GORSKI, CENTRA, LUNN, AND PERADOTTO, JJ. Edward J. Nowak, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant-Appellant. Jerold L. Ponder, Defendant-Appellant Pro Se. Michael C. Green, District Attorney, Rochester (Wendy Evans Lehmann of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[1] ) and tampering with physical evidence (§ 215.40[2] ).   According to the People, defendant and his wife shot and killed defendant's girlfriend and then buried her body in a remote area.   We reject the contention of defendant that County Court (Patricia D. Marks, J.) erred in refusing to suppress the physical evidence seized from his vehicle.   The record of the suppression hearing establishes that the police had a founded suspicion that criminal activity was afoot and thus were justified in asking defendant if there was anything in the vehicle that the police should know about and in then seeking his consent to search the vehicle (see People v. Leiva, 33 A.D.3d 1021, 1023, 823 N.Y.S.2d 494;  see generally People v. Dunbar, 5 N.Y.3d 834, 806 N.Y.S.2d 137, 840 N.E.2d 106;  People v. Battaglia, 86 N.Y.2d 755, 756, 631 N.Y.S.2d 128, 655 N.E.2d 169;  People v. Abernathy, 224 A.D.2d 826, 828, 638 N.Y.S.2d 196).   At the time when the investigator asked defendant questions with respect to the contents of the vehicle, she was aware that the victim had been reported missing, that the victim had planned to see defendant the night she disappeared, and that the victim's burned vehicle had been found the morning after the victim disappeared.   The record further establishes that defendant's consent to search the vehicle was voluntary (see generally People v. Gonzalez, 39 N.Y.2d 122, 128-130, 383 N.Y.S.2d 215, 347 N.E.2d 575).   In any event, any error in the court's refusal to suppress the physical evidence seized from defendant's vehicle is harmless (see People v. Smith, 305 A.D.2d 125, 757 N.Y.S.2d 748, lv. denied 100 N.Y.2d 599, 766 N.Y.S.2d 175, 798 N.E.2d 359;  People v. Thigpen, 234 A.D.2d 486, 651 N.Y.S.2d 566, lv. denied 89 N.Y.2d 989, 656 N.Y.S.2d 748, 678 N.E.2d 1364, 90 N.Y.2d 864, 661 N.Y.S.2d 191, 683 N.E.2d 1065;  see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).

 We reject the further contention of defendant that the court erred in refusing to suppress his statements to the police.   Defendant voluntarily accompanied the police to the police station and, although he was given Miranda warnings, he was told that he was not under arrest.   He was questioned for over seven hours, but he was repeatedly offered food and drink and he used his cellular telephone on several occasions.   There were also numerous breaks in the questioning.  “Viewing the totality of the circumstances, and according great weight to the court's factual and credibility findings, the record supports the court's determination that defendant's statement[s were] voluntary and not the product of coercion” (People v. Lind, 20 A.D.3d 765, 766, 798 N.Y.S.2d 574, lv. denied 5 N.Y.3d 830, 804 N.Y.S.2d 44, 837 N.E.2d 743;  see People v. Mastin, 261 A.D.2d 892, 892-893, 690 N.Y.S.2d 801, lv. denied 93 N.Y.2d 1022, 697 N.Y.S.2d 581, 719 N.E.2d 942;  see generally People v. Anderson, 42 N.Y.2d 35, 38, 396 N.Y.S.2d 625, 364 N.E.2d 1318).   Further, although defendant is correct that he was in custody at the time of his second statement to the police, the record establishes that an intervening statement by his wife to the police had implicated them in the victim's disappearance, and thus the police had probable cause to detain him at the time he made the second statement (see People v. Foy, 26 A.D.3d 344, 812 N.Y.S.2d 553, lv. denied 7 N.Y.3d 756, 819 N.Y.S.2d 881, 853 N.E.2d 252).

 Contrary to the contention of defendant in his pro se supplemental brief, Supreme Court (Stephen R. Sirkin, A.J.) did not abuse its discretion in denying his motion for a change of venue (see generally People v. DiPiazza, 24 N.Y.2d 342, 347, 300 N.Y.S.2d 545, 248 N.E.2d 412;  People v. Higgins, 188 A.D.2d 839, 841, 591 N.Y.S.2d 612, lv. denied 81 N.Y.2d 972, 598 N.Y.S.2d 773, 615 N.E.2d 230).  “[T]he record fails to establish that any of the selected jurors had formed an opinion with respect to defendant's guilt or innocence based on news reports of the events underlying the crimes” (People v. Hardy, 38 A.D.3d 1169, 1170, 832 N.Y.S.2d 722, lv. denied 9 N.Y.3d 865, 840 N.Y.S.2d 895, 872 N.E.2d 1201).   Defendant further contends in his pro se supplemental brief that he was denied effective assistance of counsel because, inter alia, defense counsel failed to call certain witnesses to testify.   That contention involves matters outside the record and may not be raised on direct appeal (see People v. Haynes, 39 A.D.3d 562, 564, 833 N.Y.S.2d 193, lv. denied 9 N.Y.3d 845, 840 N.Y.S.2d 771, 872 N.E.2d 884;  People v. Lawrence, 23 A.D.3d 1039, 1040, 803 N.Y.S.2d 460, lv. denied 6 N.Y.3d 835, 814 N.Y.S.2d 83, 847 N.E.2d 380).   The record otherwise establishes that defendant received meaningful representation (see Haynes, 39 A.D.3d at 564, 833 N.Y.S.2d 193;  Lawrence, 23 A.D.3d at 1040, 803 N.Y.S.2d 460;  see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   We have considered the remaining contentions of defendant in his main brief and pro se supplemental brief and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: