PEOPLE v. COX

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Leonard H. COX, Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  HURLBUTT, J.P., SCUDDER, SMITH, PINE, AND HAYES, JJ. Bridget L. Field, Batavia, for Defendant-Appellant. James B. Vargason, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him following a jury trial of, inter alia, murder in the second degree (Penal Law § 125.25[3] ) and two counts of robbery in the first degree (§ 160.15[1], [3] ).   By failing to renew his motion to dismiss at the close of his case, defendant has failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction of felony murder (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396;  People v. Page-Johnson, 5 A.D.3d 990, 773 N.Y.S.2d 310).   In any event, we conclude that the evidence is legally sufficient to establish that the victim's death was caused, in part, by the conduct of the codefendant (see § 20.00;  Matter of Anthony M., 63 N.Y.2d 270, 280, 481 N.Y.S.2d 675, 471 N.E.2d 447;  People v. Pette, 251 A.D.2d 600, 601, 674 N.Y.S.2d 768).   We likewise conclude that the verdict with respect to felony murder is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  “The jury was presented with conflicting expert testimony regarding the cause of death, and the record supports [the jury's] decision to credit the People's expert testimony” (People v. Fields, 16 A.D.3d 142, 142, 789 N.Y.S.2d 888, lv. denied 4 N.Y.3d 886, 798 N.Y.S.2d 731, 831 N.E.2d 976;  see People v. Bodenburg, 7 A.D.3d 534, 535, 775 N.Y.S.2d 595, lv. denied 3 N.Y.3d 657, 782 N.Y.S.2d 699, 816 N.E.2d 572;  People v. Rosario, 6 A.D.3d 175, 773 N.Y.S.2d 875, lv. denied 3 N.Y.3d 647, 782 N.Y.S.2d 418, 816 N.E.2d 208;  People v. Campbell, 247 A.D.2d 277, 668 N.Y.S.2d 616, lv. denied 91 N.Y.2d 1005, 676 N.Y.S.2d 133, 698 N.E.2d 962).

 We reject the further contention of defendant that County Court's jury charge on causation requires reversal.   We agree with defendant that the court erred in refusing to charge foreseeability, but we conclude that the error is harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).   The court's charge covered the sequence of conditions and events between the fracture of the victim's skull to the victim's fatal heart attack, and the court stated that “[a] defendant charged with murder ․ cannot escape liability merely because the wounds inflicted did not cause immediate death.   It is sufficient if the wound inflicted was the legal cause of death, i.e., if it started a chain of causation which was [a] competent producing cause of death.”   The undisputed evidence established that the codefendant struck the victim on the head with a baseball bat, fracturing the victim's skull, and thus the ultimate harm, i.e., death, was a “reasonably foreseeable result of the conduct” (CJI2d [N.Y.] Penal Law art. 125-Causation;  see People v. Kibbe, 35 N.Y.2d 407, 411-413, 362 N.Y.S.2d 848, 321 N.E.2d 773, rearg. denied 37 N.Y.2d 741, 374 N.Y.S.2d 1028, 337 N.E.2d 147).   The court's error therefore is harmless because the evidence of defendant's guilt is overwhelming, and there is no significant probability that defendant would have been acquitted had the court charged foreseeability (see generally Crimmins, 36 N.Y.2d at 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).   We reject the further contention of defendant that the court erred in denying his request to charge the affirmative defense to felony murder (see Penal Law § 125.25[3][a]-[d] ).  Because the evidence at trial established that defendant was aware that the codefendant was armed with a baseball bat, there is “ ‘[n]o reasonable view of the evidence’ that would have permitted a jury to find that defendant was unaware that [the codefendant] was armed” (People v. Lawrence, 1 A.D.3d 625, 627, 766 N.Y.S.2d 261, lv. denied 1 N.Y.3d 630, 777 N.Y.S.2d 28, 808 N.E.2d 1287;  see People v. Merchant, 4 A.D.3d 487, 772 N.Y.S.2d 354, lv. denied 2 N.Y.3d 803, 781 N.Y.S.2d 302, 814 N.E.2d 474;  People v. Crump, 254 A.D.2d 742, 680 N.Y.S.2d 765, lv. denied 92 N.Y.2d 1030, 684 N.Y.S.2d 495, 707 N.E.2d 450, 93 N.Y.2d 968, 695 N.Y.S.2d 54, 716 N.E.2d 1099).

 Also contrary to the contention of defendant, the court properly denied his motion to suppress his statements to the police.  “[W]here, as here, ‘a person in police custody has been issued Miranda warnings and voluntarily and intelligently waives those rights, it is not necessary to repeat the warnings prior to subsequent questioning within a reasonable time thereafter, so long as the custody [was] continuous' ” (People v. Johnson, 20 A.D.3d 939, 939, 798 N.Y.S.2d 637, quoting People v. Glinsman, 107 A.D.2d 710, 710, 484 N.Y.S.2d 64, lv. denied 64 N.Y.2d 889, 487 N.Y.S.2d 1036, 476 N.E.2d 1013, cert. denied 472 U.S. 1021, 105 S.Ct. 3487, 87 L.Ed.2d 621;  see People v. Plume, 306 A.D.2d 916, 917, 762 N.Y.S.2d 313, lv. denied 100 N.Y.2d 644, 769 N.Y.S.2d 210, 801 N.E.2d 431;  People v. Jandreau, 277 A.D.2d 998, 998-999, 716 N.Y.S.2d 514, lv. denied 96 N.Y.2d 784, 725 N.Y.S.2d 649, 749 N.E.2d 218).   The “social conversation” that followed the waiver by defendant of his Miranda rights did not create a break in the “custodial circumstances” (People v. Kollar, 305 A.D.2d 295, 299, 760 N.Y.S.2d 449, appeal dismissed 1 N.Y.3d 591, 776 N.Y.S.2d 218, 808 N.E.2d 354;  see People v. Sanders, 295 A.D.2d 639, 743 N.Y.S.2d 618, lv. denied 98 N.Y.2d 771, 752 N.Y.S.2d 12, 781 N.E.2d 924).

 “The further contention of defendant that he was denied a fair trial by prosecutorial misconduct during summation is unpreserved for our review because defendant did not object to the prosecutor's allegedly inappropriate comments” (People v. Crawford, 299 A.D.2d 848, 849, 749 N.Y.S.2d 447, lv. denied 99 N.Y.2d 581, 755 N.Y.S.2d 717, 785 N.E.2d 739, 99 N.Y.2d 653, 760 N.Y.S.2d 118, 790 N.E.2d 292;  see People v. Shabazz, 289 A.D.2d 1059, 1060, 735 N.Y.S.2d 691, affd. 99 N.Y.2d 634, 760 N.Y.S.2d 717, 790 N.E.2d 1146, rearg. denied 100 N.Y.2d 556, 763 N.Y.S.2d 814, 795 N.E.2d 40;  People v. Butler, 2 A.D.3d 1457, 1458, 769 N.Y.S.2d 768, lv. denied 3 N.Y.3d 637, 782 N.Y.S.2d 408, 409, 816 N.E.2d 198, 199).   In any event, “ [a]ny ‘improprieties were not so pervasive or egregious as to deprive defendant of a fair trial’ ” (People v. Johnson, 303 A.D.2d 967, 968, 759 N.Y.S.2d 260, lv. denied 100 N.Y.2d 583, 764 N.Y.S.2d 393, 796 N.E.2d 485, quoting People v. Gonzalez, 206 A.D.2d 946, 947, 615 N.Y.S.2d 191, lv. denied 84 N.Y.2d 867, 618 N.Y.S.2d 13, 642 N.E.2d 332;  see People v. Cohen, 302 A.D.2d 904, 905, 753 N.Y.S.2d 796).   In addition, we reject the contention of defendant that he was denied effective assistance of counsel based on defense counsel's failure to object to the prosecutor's allegedly inappropriate comments (see People v. Taylor, 1 N.Y.3d 174, 176, 770 N.Y.S.2d 711, 802 N.E.2d 1109;  see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

Finally, we conclude that the sentence is not unduly harsh or severe.

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

MEMORANDUM: