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People v. Novak

Supreme Court of New York, Third Department

March 16, 2017

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
PAUL A. NOVAK, Appellant.

          Theodore J. Stein, Woodstock, for appellant.

          James R. Farrell, District Attorney, Monticello (Stephen F. Lungen of counsel), for respondent.

          Before: Garry, J.P., Egan Jr., Devine, Clark and Aarons, JJ.

          MEMORANDUM AND ORDER

          AARONS, J.

         Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered January 31, 2014, upon a verdict convicting defendant of the crimes of murder in the first degree, murder in the second degree (two counts), burglary in the second degree, arson in the third degree, grand larceny in the second degree and insurance fraud in the second degree (two counts).

         This appeal arises from a December 2008 incident where defendant killed his estranged wife (hereinafter the victim) and burned her house to the ground. An initial investigation of the victim's death did not lead to criminal charges against defendant

         inasmuch as defendant's then girlfriend [1] provided an alibi for defendant and the victim's death was deemed accidental. Years later, however, the girlfriend confessed to law enforcement that her alibi was fabricated and that defendant killed the victim. In October 2012, defendant was charged in a multi-count indictment with murder in the first degree, murder in the second degree (two counts), burglary in the second degree, arson in the third degree, grand larceny in the second degree and insurance fraud in the second degree (two counts). After a lengthy jury trial, defendant was found guilty on all counts. County Court thereafter sentenced defendant to a controlling term of life in prison without parole. Defendant appeals. We affirm.

         Defendant challenges the legal sufficiency of the evidence as it pertains to the charge of burglary in the second degree (count four) on the basis that he was privileged to enter the marital residence. To that end, defendant contends that because the charge for burglary in the second degree cannot stand, the charge of murder in the first degree (count one) and the felony murder charge (count three) should likewise be dismissed. These legal sufficiency arguments, however, are unpreserved for review in the absence of a trial motion to dismiss premised on the specific grounds now being raised on appeal (see People v Andrews, 127 A.D.3d 1417, 1419 [2015], lv denied 25 N.Y.3d 1159');">25 N.Y.3d 1159 [2015]).

         Defendant also contends that the conviction for murder in the second degree (count two) was not supported by legally sufficient evidence. Under a legal sufficiency analysis, "we determine whether, viewing the evidence in a light most favorable to the People, the People established its burden of proving each element of the charged crime beyond a reasonable doubt" (People v Green, 121 A.D.3d 1294, 1294 [2014] [citations omitted], lv denied 25 N.Y.3d 1164');">25 N.Y.3d 1164 [2015]; see People v Taylor, 134 A.D.3d 1165, 1166 [2015], lv denied 26 N.Y.3d 1150');">26 N.Y.3d 1150 [2016]). As relevant here, a defendant is guilty of murder in the second degree if he or she causes the death of a person with the intent to do so (see Penal Law § 125.25 [1]).

         In light of defendant's further assertion that the conviction for murder in the second degree (count two) is against the weight of the evidence and, to the extent that defendant raises a similar contention with respect to the convictions only for murder in the first degree (count one) and burglary in the second degree (count four), we review the evidence adduced as to each element of the crime for which defendant was convicted and, where a contrary result would not have been unreasonable, we "weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" (People v Bleakley, 69 N.Y.2d 490, 495 [1987] [internal quotation marks and citation omitted]; People v Ackerman, 141 A.D.3d 948, 949 [2016]; People v Briggs, 129 A.D.3d 1201, 1202 [2015], lv denied 26 N.Y.3d 1038');">26 N.Y.3d 1038 [2015]).

         The trial evidence reveals that defendant and the victim, with whom he had two children, separated in January 2008. They owned a house in Sullivan County but, according to the separation agreement, the victim was given sole occupancy of it. The separation agreement also provided that "[n]either party will attend the other's home... without invitation or approval." In September 2008, defendant and his girlfriend started living together in Nassau County. Around the same time, defendant's relationship with the victim significantly deteriorated and the girlfriend testified that defendant told her that "he needed to kill [the victim]." Defendant's coworker likewise testified that defendant expressed similar thoughts to him to the effect of "putting her out of the picture" and, in early December 2008, defendant told his coworker that he wanted him to go with him to the victim's house and "take care" of her.

         The girlfriend testified that a week before the incident in question, she went with defendant to the victim's house to move some of defendant's personal items from out of the basement. She further stated that defendant wanted to leave the Bilco doors leading to the basement unlocked so that he could gain access into the house, and that his plan was to use chloroform on the victim to knock her out, light the victim's house on fire and have her die of carbon monoxide poisoning so that her death would seem like an accident. On the night of December 12, 2008, defendant made the chloroform, which he researched how to do through an Internet search. Defendant's children, who were in Nassau County at the time pursuant to a custody arrangement, were given Benadryl to ensure that they slept through the night. Defendant's coworker arrived and the girlfriend stated that defendant left his cell phone in Nassau County to avoid being tracked.

         Defendant's coworker testified that he drove with defendant to Sullivan County in a vehicle registered to the coworker's girlfriend. According to the coworker, defendant told him not to bring an E-ZPass tag. While en route, defendant and his coworker stopped at a Walmart where defendant purchased duct tape and gloves [2]. The coworker stated that, upon arrival in Sullivan County, defendant exited the vehicle, put on scrubs and the gloves and taped his wrists and ankles. Defendant proceeded to the victim's house while the coworker remained in the vehicle. Defendant returned approximately 45 to 55 minutes later and told the coworker, "It's done." Defendant informed his coworker that the chloroform did not work and that he strangled her. They waited for approximately 5 to 10 minutes when defendant exclaimed that the fire had not started. Defendant went back to the victim's house and, after returning to his coworker, defendant said, "It's now lit." Defendant and his coworker drove back to Nassau County by taking a different route than how they drove up to Sullivan County. The coworker further stated that they stopped at an abandoned gas station where defendant got rid of the gloves, duct tape and scrubs. When they approached New York City, they traversed the lower level of the George Washington Bridge. [3]

         The girlfriend testified that, upon defendant's arrival back in Nassau County, defendant told her that the victim was dead and she noticed a long scratch on defendant's neck that was not there when he left the previous evening. She learned from defendant that he had entered the victim's house through the Bilco doors, but that the dog started barking and the victim spotted defendant. Defendant tried to use the chloroform on the victim but it did not work. The girlfriend further testified that defendant told her that he and the victim had a "difficult struggle" for approximately 45 minutes and that the victim begged for her life. Defendant ultimately used the hood of the victim's ...


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