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People v. Cartagena

Supreme Court of New York, Fourth Department

April 28, 2017

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
CANDACE J. CARTAGENA, DEFENDANT-APPELLANT.

          THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT.

          MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.

          PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND SCUDDER, JJ.

         Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered August 26, 2014. The judgment convicted defendant, upon a nonjury verdict, of murder in the second degree.

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

         Memorandum: Defendant appeals from a judgment convicting her, upon a nonjury verdict, of murder in the second degree (Penal Law § 125.25 [1]). Although defendant failed to preserve for our review her challenge to the legal sufficiency of the evidence, we "necessarily review the evidence adduced as to each of the elements of the crime[] in the context of our review of defendant's challenge regarding the weight of the evidence" (People v Stephenson, 104 A.D.3d 1277, 1278, lv denied 21 N.Y.3d 1020, reconsideration denied 23 N.Y.3d 1025');">23 N.Y.3d 1025 [internal quotation marks omitted]).

         It is well established that " [i]ntent to kill may be inferred from defendant's conduct as well as the circumstances surrounding the crime' " (People v Badger, 90 A.D.3d 1531, 1532, lv denied 18 N.Y.3d 991). The People presented evidence through expert testimony that the victim's cause of death was asphyxia by neck or chest compression. That determination was based on the medical evidence as well as the fact that the victim was found: (1) face up with her shirt raised up half way; (2) with only one sock on half way; and (3) next to a pillow on bedding that appeared to be disheveled. In addition, the People presented evidence that defendant was the only person with the victim at the time of the victim's death and that defendant provided widely inconsistent accounts of her whereabouts and actions leading up to, and following, the victim's death. Although circumstantial in nature, when viewed in the light most favorable to the People, we conclude that the evidence is sufficient to establish that defendant intentionally killed the victim (see Stephenson, 104 A.D.3d at 1278-1279; People v Thibeault, 73 A.D.3d 1237, 1239-1240, lv denied 15 N.Y.3d 810, cert denied 562 U.S. 1293).

         Viewing the evidence in light of the elements of the crime in this nonjury trial (see People v Danielson, 9 N.Y.3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 N.Y.2d 490, 495). While " a finding that defendant did not intend to kill the victim[] would not have been unreasonable..., it cannot be said that County Court, which saw and heard the witnesses and thus was able to assess their credibility and reliability in a manner that is far superior to that of reviewing judges who must rely on the printed record, failed to give the evidence the weight it should be accorded' " (Badger, 90 A.D.3d at 1532). The court in this nonjury trial "was free to credit the opinion expressed by the People's expert[s] and reject that of defendant's expert" (People v Costa, 256 A.D.2d 809, 809, lv denied 93 N.Y.2d 872; see People v Benson, 119 A.D.3d 1145, 1148, lv denied 24 N.Y.3d 1118; People v Stein, 306 A.D.2d 943, 944, lv denied 100 N.Y.2d 599, reconsideration denied 1 N.Y.3d 581).

         Defendant also contends that defense counsel was ineffective for failing to preserve for our review his challenge to the legal sufficiency of the evidence. We note, however, that we have reviewed the sufficiency of the evidence in determining whether the verdict is against the weight of the evidence.

         Contrary to defendant's further contention, we conclude that the court did not err in refusing to suppress statements she made to two police officers en route to the Erie County Medical Center (ECMC) and at the emergency room of the ECMC. When the police arrived at defendant's house, they were informed that a young girl was found dead in a bedroom and that defendant was inside a shed in the backyard. Defendant was removed from the shed and placed in an ambulance, where she indicated that she had tried to commit suicide. Defendant was then transported to the ECMC. In our view, defendant was not in police custody when defendant made the statements during that time period and, in any event, we conclude that the questions asked of her were investigatory rather than accusatory in nature (see People v Carbonaro, 134 A.D.3d 1543, 1547, lv denied 27 N.Y.3d 994, reconsideration denied 27 N.Y.3d 1149). Furthermore, while a defendant's involuntary commitment under Mental Hygiene Law § 9.41 is a relevant factor in determining whether he or she is in custody for Miranda purposes (see People v Turkenich, 137 A.D.2d 363, 366-367; cf. People v Ripic, 182 A.D.2d 226, 232-233, appeal dismissed 81 N.Y.2d 776, rearg denied 81 N.Y.2d 955; see generally People v Heck, 103 A.D.3d 1140, 1142, lv denied 21 N.Y.3d 1074), we conclude that it is not dispositive in this case.

         Defendant failed to preserve for our review her contention that she was deprived of a fair trial by prosecutorial misconduct on summation inasmuch as counsel failed to challenge any of those comments during summation and raised those contentions for the first time in a postsummations mistrial motion (see People v Romero, 7 N.Y.3d 911, 912). In any event, we conclude that "the prosecutor's isolated remarks were not so egregious as to deprive defendant of a fair ...


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