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People v. Lang

Supreme Court of New York, Third Department

August 2, 2018

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
DAVID R. LANG, Appellant.

          Calendar Date: June 4, 2018

          Tendy Law Office, New York City (Matthew S. Hellman admitted pro hac vice), for appellant.

          Kristy L. Sprague, District Attorney, Elizabethtown (James E. Martineau of counsel), for respondent.

          Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Aarons, JJ.

          MEMORANDUM AND ORDER

          LYNCH, J.

         Appeal from a judgment of the County Court of Essex County (Meyer, J.), rendered November 13, 2015, upon a verdict convicting defendant of the crimes of murder in the second degree and criminal possession of a weapon in the fourth degree.

         In June 2012, defendant fatally shot his brother (hereinafter the victim) outside of the farmhouse that they shared in the Town of Crown Point, Essex County. In June 2013, defendant pleaded guilty to manslaughter in the first degree. In April 2015, this Court reversed the judgment of conviction and vacated the plea after determining that the plea was coerced (127 A.D.3d 1253 [2015]). On remittal, following a trial held over nine days, defendant was convicted of murder in the second degree and criminal possession of a weapon in the fourth degree and sentenced to an aggregate prison term of 17 years to life. Defendant now appeals.

         Initially, we find that County Court correctly denied defendant's motion to suppress the statements that he made to the police. "As a general rule, a person who is in custody cannot be questioned without first receiving Miranda warnings" (People v Doll, 21 N.Y.3d 665, 670 [2013] [citation omitted], cert denied ___ U.S. ___, 134 S.Ct. 1552');">134 S.Ct. 1552 [2014]; see People v Henry, 114 A.D.3d 1025, 1026 [2014], lv dismissed 22 N.Y.3d 1199 [2014]). Because "the Constitution is not a barrier to a police officer seeking to help someone in immediate danger," an exception to this rule exists where an officer's questions are "an objectively reasonable response to an apparently exigent situation" (People v Doll, 21 N.Y.3d at 670). To establish this emergency exception, "(1) the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property and this belief must be grounded in empirical facts; (2) the [questioning] must not be primarily motivated by an intent to arrest...; and (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the [questions]" (id. at 671). If an "improper, unwarned statement gives rise to a subsequent Mirandaized statement as part of a single continuous chain of events, there is inadequate assurance that the Miranda warnings were effective in protecting a defendant's rights, and the warned statement must also be suppressed" (People v Paulman, 5 N.Y.3d 122, 130 [2005] [internal quotation marks and citation omitted]; accord People v Neal, 60 A.D.3d 1158, 1159 [2009], lv denied 12 N.Y.3d 857');">12 N.Y.3d 857 [2009]).

         At the suppression hearing, Christopher Bogart, a State Trooper, testified that he went to defendant's house in response to a domestic disturbance 911 call. While en route, a dispatcher advised that defendant had reported that he shot his brother, that he was inside the house and that he had left a gun on the porch. Jason Peters, another State Trooper, testified that he arrived at defendant's house at the same time in a separate car. Both Bogart and Peters left their police vehicles in the road rather than drive them onto the property. Bogart approached the house first, with his gun drawn, and Peters followed and took cover behind a tree on defendant's lawn. Peters testified that when defendant came out of the house, he could tell that he did not have anything in his hands. Bogart recalled that as he approached defendant, he could see the victim lying in the nearby driveway. Bogart placed handcuffs on defendant and told him he was under arrest. Peters asked defendant where the victim was and defendant told him that he was in the driveway. Peters ran to check on the victim, discovered that he was still alive, called emergency medical services and went to move his police vehicle out of the road and onto the property. Peters returned to defendant and Bogart and held defendant” who had begun to complain about the pain in his knees” as Bogart went to move his police vehicle closer to defendant's house so that defendant would have a place to sit. Peters asked where the gun was and defendant told him it was on the porch. Without moving from where he was standing outside of the house, Peters looked and could see the gun on top of a refrigerator, the barrel pointed towards them. Both Peters and Bogart recalled that defendant and the victim's other brother drove onto the property before the gun was secured, and Peters yelled at him to leave as he was going onto the porch to get the gun off the refrigerator. Once the gun was secured, Bogart placed defendant into his nearby police car and read him his Miranda rights.

         Based on this testimony, there were two questions asked while defendant was in custody and prior to being read his Miranda rights. Although defendant characterizes the scene as relatively calm and deliberate, in context, we cannot agree. The two officers arrived at defendant's remote farm knowing that defendant shot his brother and that there were a number of family members living nearby” indeed, within minutes of their arrival, one sibling arrived and had to be directed to leave. Neither officer knew whether anyone else was in the house or on the property, nor whether defendant had access to more than one gun. The questions that Peters asked were not intended to obtain evidence but to try to quickly help the victim and to secure the area so emergency medical services could do their work. In our view, Peters had reasonable ground to believe that there was an "emergency at hand" (People v Doll, 21 N.Y.3d at 670-671), and these concerns permitted Peters to pose the limited questions prior to advising defendant of his Miranda rights (see People v Dawson, 149 A.D.3d 1569, 1571 [2017], lvs denied 29 N.Y.3d 1125, 1133 [2017]). Because this questioning was permitted, we reject defendant's claim that it was necessary to suppress the later statements made following Bogart's administration of a Miranda warning (see People v Paulman, 5 N.Y.3d at 130; People v Neal, 60 A.D.3d at 1159).

         Defendant also contends that his conviction for murder in the second degree is against the weight of the evidence. If an acquittal is not unreasonable, "our weight of the evidence review requires us to view the evidence in a neutral light and weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" (People v Peterkin, 159 A.D.3d 1196, 1197 [2018] [internal quotation marks and citations omitted]; see People v Bleakley, 69 N.Y.2d 490, 495 [1987]; People v Criss, 151 A.D.3d 1275, 1276-1277 [2017], lv denied 30 N.Y.3d 979');">30 N.Y.3d 979 [2017]). A person is guilty of murder in the second degree when, "[w]ith the intent to cause the death of another person," he or she causes the death of another person (Penal Law § 125.25 [1]; see People v Ryder, 146 A.D.3d 1022, 1024 [2017], lv denied 29 N.Y.3d 1086');">29 N.Y.3d 1086 [2017]). The element of intent is established where a person's "conscious objective is to cause such result" (Penal Law § 15.05 [1]). Evidence of intoxication may be presented to negate the element of intent (see CPL 15.25; People v Mould, 143 A.D.3d 1186, 1187 [2016], lv denied, 28 N.Y.3d 1187');">28 N.Y.3d 1187 [2017]).

         At trial, Bogart and Peters testified that at approximately 3:00 p.m. on the day in question, they went separately to defendant's farm following defendant's 911 call reporting that he had shot the victim. As Bogart approached the house, he observed the victim lying in the driveway. After complying with the troopers' orders to come out of the house, defendant was promptly handcuffed. Peters seized a.22-caliber magnum that defendant identified as the rifle that he used to shoot the victim. Once placed in Bogart's car, defendant waived his Miranda rights and, in response to Bogart's questions, said that he meant to kill the victim, that it was not an accident and that "Yes, hell, yes, [he] wanted the [victim] dead."

         Peter DeForest, the People's crime scene expert, testified that based on his review of the evidence, including his inspection of a hole in the hat found near the victim's body, the gunshot wound in the victim's head was consistent with a.22-caliber bullet that was stable in flight, i.e., not deflected off another object prior to striking the victim. Allan Wright, a forensic officer, testified that when he investigated the crime scene, he photographed a broken lilac branch in the vicinity of defendant's house and driveway and determined that the branch was broken and not struck by a bullet. DeForest similarly testified that the branch was a "greenstick fracture." In contrast, defendant's forensic expert testified that his review of the hat and gunshot wound led him to conclude that the bullet did pass through an intermediate object, and defendant's crime scene expert opined that the lilac branch was struck by a bullet and that he had never heard the term "greenstick fracture" in the context of a tree branch.

         The jury heard the recording of the 911 call that defendant made at approximately 2:45 p.m. Notably, when the dispatcher asked defendant if he had been drinking, defendant responded, "Of course I've been drinking. I drink every [expletive] day." Both Peters and Bogart testified that they could smell alcohol on defendant's breath but that he was calm and that his speech was clear. Further, though defendant complained of pain in his knees, Bogart recalled that he appeared to be steady on his feet and able to walk. When the police sent defendant for a blood test at approximately 9:00 p.m., nearly six hours after he was taken into custody, his blood alcohol content (hereinafter BAC) was.18%. Defendant presented testimony by Sherry Kacinko, a toxicologist, who opined that if defendant's blood had ...


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