Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered March 5, 2009.
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on October 5, 2012
PRESENT: SCUDDER, P.J., SMITH, FAHEY, AND PERADOTTO, JJ.
The judgment convicted defendant, upon a jury verdict, of murder in the second degree, attempted murder in the second degree and offering a false instrument for filing in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting her following a jury trial of, inter alia, murder in the second degree (Penal Law § 125.25 ), based upon the death of her second husband from poisoning with antifreeze, and attempted murder in the second degree (§§ 110.00, 125.25 ), based upon the poisoning of her daughter with a combination of pharmaceutical drugs and alcohol. In appeal No. 2, defendant appeals from an order denying her motion pursuant to CPL 440.10 seeking to vacate the judgment, inter alia, on the ground that her statement to the police on September 7, 2007 was taken in violation of her indelible right to counsel.
Defendant's second husband was found dead on August 22, 2005, and his death from poisoning with antifreeze was determined by the Medical Examiner to be a suicide. More than two years later, on September 7, 2007, defendant agreed to discuss her husband's death with the police, and she waived her Miranda rights and provided a statement. Two days before speaking to defendant, the police had received the results of an autopsy performed on the exhumed body of defendant's first husband, who had died in 2000, which established that he too had died from poisoning with antifreeze. On September 14, 2007, defendant's youngest daughter found her 20-year-old sister, defendant's eldest daughter (daughter), unresponsive in her bedroom as a result of ingesting prescription drugs and alcohol. In a one-page typed document that was purported to be the daughter's suicide note (purported suicide note), it was stated that the daughter had killed both her father, defendant's first husband, and her stepfather, defendant's second husband. When the daughter regained consciousness, she denied that she had attempted to kill herself and that she had written the purported suicide note.
We address first defendant's contentions in appeal No. 1. We reject defendant's contention that County Court abused its discretion in permitting the People to introduce evidence in their direct case of the uncharged murder of defendant's first husband. Contrary to defendant's contention, the court properly determined that there was clear and convincing evidence that defendant committed that uncharged murder. It is well established that where, as here, the identity of the perpetrator of the uncharged crime is unknown, the court must determine that there is clear and convincing evidence of both a unique modus operandi and defendant's identity as the perpetrator of the uncharged crime before allowing the People to present evidence of the uncharged crime on the issue of identity in their direct case against defendant (see People v Robinson, 68 NY2d 541, 550). First, we conclude that "the People presented clear and convincing evidence that defendant committed the [uncharged murder of her first husband] by using a distinctive and unique modus operandi," i.e., poisoning with antifreeze (People v Curry, 82 AD3d 1650, 1650, lv denied 17 NY3d 805; see People v Beam, 57 NY2d 241, 252-253; cf. People v Crawford, 4 AD3d 748, 749, lv denied 2 NY3d 797). Second, we conclude that the People presented clear and convincing evidence that defendant was the perpetrator of her first husband's uncharged murder. The People's evidence at trial establishes that defendant had purchased a life insurance policy on the life of her first husband; that the daughter was 12 years old when her father, defendant's first husband, died and thus was unlikely to have committed the fairly sophisticated murder of her father; that defendant had refused to consent to an autopsy of her first husband, who was 38 years old at the time of his death; that the purported suicide note referenced the fact that defendant's first husband also had ingested rat poison, a fact that could be known only by the person who killed him; and that defendant admitted to having rat poison in their home.
Contrary to defendant's further contention, the court properly determined that the evidence of the uncharged murder was inextricably interwoven with the evidence of the charged crimes inasmuch as the uncharged murder was discussed in the purported suicide note and was probative evidence of the motive for the attempted murder of the daughter. In order "[t]o be inextricably interwoven . . . the evidence must be explanatory of the acts done or the words used in the otherwise admissible part of the evidence" (People v Ventimiglia, 52 NY2d 350, 361). Here, the People's expert explained that the first draft of the purported suicide note had been written on the family's computer four days after defendant learned that the body of her first husband had been exhumed. Further, the purported suicide note explained why the daughter killed both of defendant's husbands and included numerous references to the uncharged murder. Thus, the evidence of the uncharged murder provided necessary background information to explain references to that crime in the purported suicide note, was probative of the motive for the attempted murder of defendant's daughter, and placed the timing of the writing of the purported suicide note and attempted murder of the daughter "in context" (People v Dorm, 12 NY3d 16, 19; see People v Carey, 92 AD3d 1224, 1225, lv denied 18 NY3d 992).
Defendant failed to preserve for our review her contention that the court erred in failing to charge the jury that it could consider evidence of the uncharged murder only if it determined that the People proved by clear and convincing evidence that defendant killed her first husband (see People v Perez, 89 AD3d 1393, 1394, lv denied 18 NY3d 961). In any event, that contention lacks merit inasmuch as the court, rather than the jury, must make the determination whether the People have presented clear and convincing evidence that defendant was the perpetrator of the uncharged crime (see Robinson,68 NY2d at 550). We further conclude that the court properly instructed the jury that the evidence of the uncharged murder could be considered only for the limited purpose of determining the identity of the "perpetrator in this case" (see id. at 549-550).
We reject defendant's contention that the court erred in refusing to suppress a statement she made to the police on September 14, 2007 at the hospital regarding the substances that the daughter may have ingested. The People correctly concede that defendant's attorney had advised the police on September 12, 2007 that he had been retained by defendant in connection with the investigation of the death of defendant's second husband and that she was not to be questioned concerning that matter. We conclude, however, that the record establishes that the police did not question defendant regarding her second husband's death, nor can it be said that the ...