PEOPLE v. DOZIER

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Angela DOZIER, Defendant-Appellant.

Decided: September 29, 2006

PRESENT:  HURLBUTT, J.P., SCUDDER, GORSKI, AND GREEN, JJ. Felle, Stocker & Margulis, Williamsville (Wayne C. Felle of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Shawn P. Hennessy of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting her after a jury trial of murder in the second degree (Penal Law § 125.25[4] ) and two counts of endangering the welfare of a child (§ 260.10[2] ).   We reject the contention of defendant that Supreme Court erred in denying that part of her motion seeking to suppress her statements to the police.   The court properly determined that defendant was not in custody when she gave police a statement before she was given Miranda warnings.   Defendant willingly accompanied the police to the police station, she was not handcuffed, she was offered food and beverages, and she was not questioned in an accusatory fashion.   Under these circumstances, a reasonable person innocent of any crime would not have believed that he or she was in custody, and thus warnings were not required (see People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, rearg. denied 26 N.Y.2d 845, 883, 309 N.Y.S.2d 593, 1032, 258 N.E.2d 90, 223, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89;  People v. Lunderman, 19 A.D.3d 1067, 1068, 796 N.Y.S.2d 481, lv. denied 5 N.Y.3d 830, 804 N.Y.S.2d 44, 837 N.E.2d 743;  People v. Scott, 288 A.D.2d 846, 847, 732 N.Y.S.2d 502, lv. denied 97 N.Y.2d 761, 742 N.Y.S.2d 622, 769 N.E.2d 368).   “Because the initial statement was not the product of pre-Miranda custodial interrogation, the post-Miranda detailed confession given by defendant cannot be considered the fruit of the poisonous tree” (People v. Flecha, 195 A.D.2d 1052, 1053, 600 N.Y.S.2d 400).

 We reject the further contention of defendant that the court abused its discretion in denying her motion to sever count three from counts one and two of the indictment because different victims were involved.   A motion to sever counts joinable under CPL 200.20(2)(c) “is addressed to the sound discretion of the court” (People v. Daymon, 239 A.D.2d 907, 908, 659 N.Y.S.2d 621, lv. denied 94 N.Y.2d 821, 702 N.Y.S.2d 591, 724 N.E.2d 383). Here, the proof with regard to each victim was “straightforward and easily segregated” (id.;   see People v. Lovett, 303 A.D.2d 952, 755 N.Y.S.2d 906, lv. denied 100 N.Y.2d 584, 764 N.Y.S.2d 394, 796 N.E.2d 486;  People v. McKnight, 284 A.D.2d 941, 941-942, 726 N.Y.S.2d 326, lv. denied 96 N.Y.2d 921, 732 N.Y.S.2d 638, 758 N.E.2d 664).   In addition, “the possibility of prejudice was limited by the court's curative instruction” (People v. Mazzu, 134 A.D.2d 890, 891, 522 N.Y.S.2d 55, lv. denied 70 N.Y.2d 1008, 526 N.Y.S.2d 943, 521 N.E.2d 1086;  see People v. McKinnon, 15 A.D.3d 842, 843, 788 N.Y.S.2d 766, lv. denied 4 N.Y.3d 888, 798 N.Y.S.2d 734, 831 N.E.2d 979).

 Finally, we reject the contention of defendant that she was denied effective assistance of counsel because counsel failed to introduce evidence of the deceased victim's preexisting medical problems and failed to move to sever count two as well as count three from the indictment.   The deceased victim's preexisting medical problems were not related in any way to the injuries that led to the victim's death, and thus there was no basis for counsel to introduce evidence of them, and his failure to do so does not indicate ineffectiveness of counsel (see People v. Davis, 15 A.D.3d 930, 932, 788 N.Y.S.2d 782, lv. denied 5 N.Y.3d 761, 801 N.Y.S.2d 255, 834 N.E.2d 1265).   Any motion to sever counts two and three from the indictment would have had “ ‘little or no chance of success,’ ” and thus counsel's failure to make such a motion also does not indicate ineffectiveness of counsel (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;  see also People v. McNerney, 6 A.D.3d 1107, 775 N.Y.S.2d 739, lv. denied 3 N.Y.3d 678, 784 N.Y.S.2d 17, 817 N.E.2d 835).   We conclude that the evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

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

MEMORANDUM: