People v. Slivienski
2022 NY Slip Op 02584
| N.Y. App. Div. | 2022Background
- Night of Nov. 16, 2018: victim went alone to a Cohoes bike path to buy marijuana as part of a plan to "stain" (rob) the dealer; friends heard gunshots during a call and the victim was fatally shot.
- Crime scene yielded .40 caliber bullets/cartridge cases and metal fragments; a trail and trail-camera photo led toward Norlite quarry area.
- Surveillance and witness accounts placed a silver Chevrolet Impala/taxi pick-up near the quarry; taxi driver and passengers identified the front-seat passenger as defendant.
- TextNow account used to contact the victim was linked by IP/session logs to a Time Warner IP at defendant’s stepfather’s residence and to a Verizon IP associated with defendant’s phone; cell-site mapping placed defendant’s phone near the scene around the shooting time.
- A summertime video showed defendant firing a .40-caliber pistol at a Lake George property; forensic comparison linked .40-caliber cartridge cases from that property to the cartridge cases found at the crime scene.
- Defendant was indicted, tried, convicted of 2nd-degree murder and 2nd-degree weapon possession; on appeal he challenged sufficiency/weight of evidence, Miranda invocation, suppression of TextNow records, admissibility of the Lake George video, Brady disclosure, and effectiveness of counsel.
Issues
| Issue | People’s Argument | Slivienski’s Argument | Held |
|---|---|---|---|
| Sufficiency / weight of evidence (identity) | Circumstantial proof (ballistics linking property and scene, phone/IP/cell-site mapping, taxi IDs, witness testimony) proves defendant was shooter | Evidence consistent with innocence; identifications and inferences unreliable | Conviction affirmed; evidence (ballistics + location data + IDs) sufficient and weight supports verdict |
| Miranda invocation / suppression of statements | Defendant waived Miranda initially; subsequent statements were largely exculpatory so any error harmless | While being frisked at station defendant twice said he did not "want to talk anymore" — an unequivocal invocation; continued interrogation violated Miranda | Court found invocation was unequivocal and interrogation violated Miranda, but error was harmless beyond a reasonable doubt given overwhelming proof |
| Standing / suppression of TextNow IP records | No reasonable expectation of privacy in IP addresses/info held by third parties; records admissible | Defendant sought to preserve anonymity by using TextNow; argues expectation of privacy in identity/IP linkage | No standing to suppress; society does not recognize expectation of privacy in IP/session data held by provider; records properly admitted |
| Admissibility of Lake George video (Molineux) | Video is direct evidence showing defendant possessed and used the same .40 firearm — relevant to identity, not prior bad acts | Admission would be prejudicial Molineux evidence of other bad acts | Admissible as direct evidence (not Molineux); probative value on identity outweighs prejudice |
| Brady/materiality (ballistics expert’s post-trial accident) | Disclosure of expert’s pretrial reports occurred; accident-related limitations not material | Non-disclosure of expert’s car-accident effects could have impeached credibility and was material | Trial court applied correct test; nondisclosed information not material — no reasonable possibility result would differ; motion denied |
| Ineffective assistance of counsel | Trial counsel mounted a coherent defense, made motions and cross-examined effectively | Counsel committed various errors (claimed) that deprived defendant of a fair trial | Claims examined and rejected; overall representation was meaningful and not constitutionally deficient |
Key Cases Cited
- Miranda v. Arizona, 384 U.S. 436 (1966) (Miranda warnings and requirement to cease interrogation after an unequivocal invocation of the right to remain silent)
- Carpenter v. United States, 138 S. Ct. 2206 (2018) (third-party disclosure doctrine and limits on privacy expectations for certain digital records)
- People v. Frumusa, 29 N.Y.3d 364 (2017) (Molineux framework; distinction when proffered evidence is direct proof of charged crime)
- People v. Brewer, 28 N.Y.3d 271 (2016) (standards for admitting prior bad-act evidence under Molineux)
- People v. Alvino, 71 N.Y.2d 233 (1987) (balancing probative value against undue prejudice for prior-bad-act evidence)
- People v. Giuca, 33 N.Y.3d 462 (2019) (elements and materiality standard for Brady/Giglio claims)
- People v. Ramirez-Portoreal, 88 N.Y.2d 99 (1996) (standing: legitimate expectation of privacy analysis)
- People v. Sweet, 200 A.D.3d 1315 (2021) (application of sufficiency standard to circumstantial-evidence identity cases)