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

The PEOPLE of the State of New York, Respondent, v. Senora L. BOLARINWA, Appellant.

Decided: February 25, 1999

Before:  MIKOLL, J.P., CREW III, PETERS, SPAIN and GRAFFEO, JJ. Ackerman, Wachs & Finton P.C. (Theresa Suozzi of counsel), Albany, for appellant. Sol Greenberg, District Attorney (Mirriam Z. Seddiq of counsel), Albany, for respondent.

Appeal from a judgment of the County Court of Albany County (Rosen, J.), rendered April 4, 1997, upon a verdict convicting defendant of the crime of murder in the second degree.

Defendant was charged with the crimes of murder in the second degree in violation of Penal Law § 125.25(4) and manslaughter in the first degree in violation of Penal Law § 125.20(4) after the body of her three-year-old son was found floating in the Hudson River in the City of Albany.   At the conclusion of the trial, at which defendant asserted that she was not guilty by reason of mental disease or defect, defendant was found guilty of murder in the second degree and sentenced to a term of imprisonment of 25 years to life.   Defendant now appeals.

At approximately 6:00 P.M. on July 16, 1995, defendant and her father entered the Albany Police Station claiming that they could not locate defendant's three-year-old son.   Defendant's father expressed concern that some harm may have come to the child.   Sergeant Joseph Marchesi asked defendant whether the child was with his father or if she knew of the child's whereabouts.   When defendant failed to respond, Marchesi then inquired whether defendant was aware of any harm to the child, to which she first stated that the child “was in the water” and then said “I threw him in” in a low voice.   Marchesi testified that he was not sure if there was a problem at that point but that he and defendant's father agreed they should search for the child near the Hudson River.   Defendant and her father traveled in her father's car to the river, with Officer Mark Leonardo following them.   At the riverbank, Leonardo asked defendant to show him the child's location.   Defendant pointed to a site and, thereafter, Leonardo retrieved the child's body and attempted resuscitation.   After other officers arrived at the scene, defendant approached and asked if the child was “all right”.

Subsequently, defendant agreed to accompany the officers to the police station and no conversation occurred in transit.   Defendant was taken to an interview room and, after being provided her Miranda warnings by Detective Kenneth Kennedy, she indicated that she understood her rights and agreed to speak with the officers.   She offered initial biographical information and then stated that she could not remember how she or the child got to the river.   Although she denied having previously stated to the police that she had thrown her child into the river, she claimed that she and her son were “in the water”.   When accused of killing her child, defendant stood up and started screaming and acting peculiarly.   Her father assisted in quieting her and the questioning ceased.

Later that evening, when Detective Larry Cartwright was walking down the hallway at the police station, he heard a commotion in one of the nearby rooms.   Entering the room, he found defendant yelling as another officer was trying to calm her.   No questions were asked of defendant but Cartwright heard her say “I left him in the water.   I didn't even get him.   Why didn't I get him?   What is wrong with me?”   Additionally, after being escorted to the women's bathroom by another officer, defendant gazed in the mirror and spontaneously yelled, “Oh, my God. Oh, my God. What have I done to my baby?”   Defendant was thereafter transported to the Albany County Jail.

 Defendant initially contends that County Court erred in determining that defendant's various incriminating statements were admissible.   With respect to defendant's assertion that she was in custody at the time she made the statements, it is well settled that the test to be applied is whether a reasonable person, innocent of any crime, would feel free to leave in the presence of the police (see, People v. Lynch, 178 A.D.2d 779, 781, 578 N.Y.S.2d 268, lv. denied 79 N.Y.2d 949, 583 N.Y.S.2d 203, 592 N.E.2d 811;  People v. Bailey, 140 A.D.2d 356, 358, 527 N.Y.S.2d 845).   We conclude that in light of the totality of the circumstances (see, People v. Marino, 246 A.D.2d 491, 667 N.Y.S.2d 253, lv. denied 91 N.Y.2d 1009, 676 N.Y.S.2d 137, 698 N.E.2d 966), an innocent person in defendant's position would not have reasonably considered herself in custody until after the discovery of the child's body.   Significantly, defendant voluntarily entered the police station with her father and, although she made a statement which suggested foul play, there was no specific admission of criminal activity nor information pertaining to the fate of the child.   The police took no action to restrain defendant and asked her only several nonadversarial questions in the police station's reception area (see, People v. Finkle, 192 A.D.2d 783, 596 N.Y.S.2d 549, lv. denied 82 N.Y.2d 753, 603 N.Y.S.2d 995, 624 N.E.2d 181;  People v. Murphy, 188 A.D.2d 742, 591 N.Y.S.2d 860, lv. denied 81 N.Y.2d 890, 597 N.Y.S.2d 951, 613 N.E.2d 983;  People v. Bennett, 179 A.D.2d 837, 577 N.Y.S.2d 967;  People v. Doddy, 174 A.D.2d 997, 572 N.Y.S.2d 157, lv. denied 78 N.Y.2d 965, 574 N.Y.S.2d 945, 580 N.E.2d 417).   Defendant then voluntarily traveled to the river in her father's automobile.   At the riverbank, defendant and her father approached Leonardo and directed him to a location at the river's edge.   Prior to locating the child's body, neither defendant nor her father requested to go home or to leave the scene.   Therefore, we find all statements up to the time the body was found were admissible as defendant was not in custody.

 Defendant's argument that her statements made after being taken back to the station and arrested were improperly admitted is also unavailing.   It is axiomatic that once in custody a defendant must be informed of his or her constitutional rights (see, Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694), but that after those rights have been explained a defendant may waive those rights provided that the waiver is made voluntarily, knowingly and intelligently (see, id.).   After returning to the station, defendant was provided Miranda warnings and agreed to speak with the police.   Based on the totality of the surrounding circumstances and according considerable deference to County Court's findings (see, People v. Miller, 244 A.D.2d 828, 666 N.Y.S.2d 281), we conclude that defendant's waiver was voluntary and she was able to understand her rights and appreciate the nature and consequences of her actions (see, People v. Schompert, 19 N.Y.2d 300, 305, 279 N.Y.S.2d 515, 226 N.E.2d 305, cert. denied 389 U.S. 874, 88 S.Ct. 164, 19 L.Ed.2d 157;  People v. Krause, 200 A.D.2d 909, 607 N.Y.S.2d 453).   Moreover, defendant's statements which were overheard by Cartwright, as well as the comments made in the bathroom, were spontaneous statements not initiated by police conduct nor the result of police questioning or an interrogation environment (see, People v. Gonzales, 75 N.Y.2d 938, 555 N.Y.S.2d 681, 554 N.E.2d 1269;  People v. Harris, 57 N.Y.2d 335, 456 N.Y.S.2d 694, 442 N.E.2d 1205, cert. denied 460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 803;  cf., People v. Dunn, 195 A.D.2d 240, 607 N.Y.S.2d 689, affd. 85 N.Y.2d 956, 626 N.Y.S.2d 1007, 650 N.E.2d 854).

 Defendant next challenges County Court's Molineux ruling which permitted the prosecution to present evidence of certain of defendant's prior bad acts in its direct case.   County Court, deeming several prior bad acts inadmissible, ruled that testimony concerning previous charges of child neglect and an attack by defendant on her husband would be admissible during the People's case.   Evidence of prior bad acts is admissible if it relates to a material issue of fact pertaining to the crime charged and if its probative value outweighs its prejudicial effect (see, People v. Ely, 68 N.Y.2d 520, 510 N.Y.S.2d 532, 503 N.E.2d 88;  People v. Mendez, 165 A.D.2d 751, 564 N.Y.S.2d 241, lv. denied 77 N.Y.2d 880, 568 N.Y.S.2d 923, 571 N.E.2d 93).   Such evidence, however, cannot be introduced solely to establish defendant's criminal propensity (see, People v. Blair, 90 N.Y.2d 1003, 1004-1005, 665 N.Y.S.2d 629, 688 N.E.2d 503;  People v. Archer, 232 A.D.2d 820, 821, 649 N.Y.S.2d 204, lv. denied 90 N.Y.2d 938, 664 N.Y.S.2d 756, 687 N.E.2d 653) and, therefore, the People must demonstrate that the evidence is relevant regarding another issue (see, People v. Alvino, 71 N.Y.2d 233, 525 N.Y.S.2d 7, 519 N.E.2d 808), including but not limited to motive, intent, absence of mistake or accident, common scheme or plan, or identity (see, People v. Molineux, 168 N.Y. 264, 293, 61 N.E. 286).

Here, defendant based her case on the affirmative defense of not responsible by reason of mental disease or defect.   Claiming that defendant suffered from mental illness since adolescence, the opening offered by defendant's counsel characterized her as an individual who had “lost touch with the difference between right and wrong, lost touch with the consequences of her actions”.   The People, therefore, sought to introduce evidence of defendant's prior acknowledgment of misconduct toward her other children to show that her claims of unawareness were false and self-serving, thereby contradicting defendant's affirmative defense.   The People further offered the testimony to establish that defendant's conduct was not an aberration in her life, but, rather, that defendant previously neglected her children and was aware of the consequences, had recognized her fault and the ramifications of her actions, and had been admonished in court for such neglect.   Finally, it was submitted that the proof of neglect also demonstrated that a plan was developed to assist defendant in caring for her children, which was probative to rebut defendant's claim that she never received proper care or treatment for her problems.

 Based on the foregoing, we find that the charges of neglect against defendant were properly admitted as they addressed defendant's knowledge and were relevant on the issue of defendant's subjective mental state at the time of the crime.   Indeed, she contended in her defense that she was unable to differentiate “right” from “wrong” and suffered from a lack of comprehension in understanding the nature and consequences of her actions and this proof served to refute this proposition (cf., People v. Ciervo, 123 A.D.2d 393, 506 N.Y.S.2d 462).   Furthermore, County Court specifically provided a limiting instruction to the jury which directed that the evidence could be used only in evaluating defendant's mental state (see, People v. Brown, 221 A.D.2d 822, 633 N.Y.S.2d 851).   With respect to evidence proffered regarding defendant's assault of her husband, we are of the view that it was properly admitted as probative to demonstrate defendant's anger toward her husband which the People offered as a motive for the homicide (cf., People v. Steinberg, 170 A.D.2d 50, 573 N.Y.S.2d 965, affd. 79 N.Y.2d 673, 584 N.Y.S.2d 770, 595 N.E.2d 845;  People v. Willsey, 148 A.D.2d 764, 538 N.Y.S.2d 342, lv. denied 74 N.Y.2d 749, 545 N.Y.S.2d 124, 543 N.E.2d 767).   Defendant's other contentions of error pertaining to the admissibility of prior bad acts are either without merit or harmless in light of the overwhelming strength of the other evidence against defendant (see, People v. Schrader, 251 A.D.2d 1032, 674 N.Y.S.2d 882, lv. denied 92 N.Y.2d 882, 678 N.Y.S.2d 29, 700 N.E.2d 567).

 We also find no merit in defendant's assertion that County Court erred in declining to conduct a sua sponte hearing with respect to defendant's competency to stand trial.   County Court did, in fact, conduct a Hudson hearing in August 1995 (see, CPL 730.30) and determined that defendant was an incapacitated person and ordered her committed to an appropriate institution for a period not to exceed one year.   Following approximately six months of care and treatment, defendant was certified as fit to proceed to trial in March 1996 by a psychiatrist at Mid-Hudson Psychiatric Center, who essentially found her depression and suicidal tendencies sufficiently improved to return her to a correctional facility.   The psychiatrist's report concluded that she had no manic behavior and had “not exhibited any features of borderline personality disorder” during her hospitalization.   It was within County Court's sound discretion to make a determination whether another competency hearing was required (see, People v. Morgan, 87 N.Y.2d 878, 879, 638 N.Y.S.2d 942, 662 N.E.2d 260;  People v. Tortorici, 249 A.D.2d 588, 593, 671 N.Y.S.2d 162, affd. 92 N.Y.2d 757, 686 N.Y.S.2d 346, 709 N.E.2d 87).   Significantly, the defense did not request a hearing (see, People v. Gensler, 72 N.Y.2d 239, 532 N.Y.S.2d 72, 527 N.E.2d 1209) and a psychiatric expert stated that defendant was competent to stand trial.   While the court's obligation to determine competency to stand trial is not alleviated by the absence of a request for a hearing (id., at 246, 532 N.Y.S.2d 72, 527 N.E.2d 1209), here, County Court had the opportunity to interact with and observe defendant at her arraignment, during pretrial hearings, jury selection and throughout the course of the trial itself.   As a result, the court had adequate opportunity to properly assess defendant's competency.   Therefore, we find no abuse of discretion in determining that defendant possessed the capacity to stand trial (see, People v. Russell, 74 N.Y.2d 901, 549 N.Y.S.2d 646, 548 N.E.2d 1297;  People v. King, 187 A.D.2d 612, 590 N.Y.S.2d 110, lv. denied 81 N.Y.2d 790, 594 N.Y.S.2d 737, 610 N.E.2d 410).

 Lastly, we reject defendant's argument that the jury verdict was against the weight of the evidence.   In the determination of whether a jury verdict is supported by the weight of the evidence, considerable deference is accorded to the jury as fact-finder (see, People v. Page, 225 A.D.2d 831, 833, 638 N.Y.S.2d 985, lv. denied 88 N.Y.2d 883, 645 N.Y.S.2d 457, 668 N.E.2d 428).   Moreover, the jury is free to weigh conflicting expert testimony on the issue of criminal responsibility and may accept or reject the opinion of any expert (see, People v. Smith, 217 A.D.2d 221, 234-235, 635 N.Y.S.2d 824, lv. denied 87 N.Y.2d 977, 642 N.Y.S.2d 207, 664 N.E.2d 1270;  People v. James, 191 A.D.2d 957, 958, 594 N.Y.S.2d 499, lv. denied 82 N.Y.2d 720, 602 N.Y.S.2d 817, 622 N.E.2d 318, cert. denied 510 U.S. 1077, 114 S.Ct. 891, 127 L.Ed.2d 85;  People v. Seiler, 139 A.D.2d 832, 527 N.Y.S.2d 574, lv. denied 72 N.Y.2d 924, 532 N.Y.S.2d 858, 529 N.E.2d 188).

 In this case, the jury's determination was focused on whether defendant had the capacity to appreciate either the nature and consequences of her conduct or that such conduct was wrong (see, Penal Law § 40.15).   Although defendant presented seven experts to testify in support of her defense that she was not guilty by reason of mental disease or defect, the jury clearly credited the People's expert, Kevin Smith, a board-certified psychiatrist, and Medical Director of Mental Health Services and Chairman of the Department of Psychiatry at Benedictine Hospital in the City of Kingston, Ulster County.   Smith's testimony, based on a review of defendant's medical records and two separate interviews, one of which was more than three hours, opined that defendant did not suffer from a mental disease or defect and did not lack the capacity to appreciate the nature and consequences of her conduct.   Additionally, he indicated that defendant feigned illnesses, was a malingerer and was not suffering from major depression or any dissociative disorder, including multiple personalities, at the time that she killed her child.   The conflicting expert testimony created an issue of fact which was properly determined by the jury (see, People v. Smith, supra, at 234-235, 635 N.Y.S.2d 824;  People v. Seiler, supra, at 833, 527 N.Y.S.2d 574) and we, therefore, conclude that its verdict was not against the weight of the evidence.

We have reviewed defendant's remaining contentions and have found them to be without merit.

ORDERED that the judgment is affirmed.



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