People v. BoxPeople v. Box
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v KYLE A. BOX, DEFENDANT-APPELLANT.
DANIELLE C. WILD, ROCHESTER, FOR DEFENDANT-APPELLANT.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN, FOR RESPONDENT.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), rendered March 3, 2017. The judgment convicted defendant, upon a jury vеrdict, of murder in the second degree, assault in the first degree, arson in the second degree, arson in the third degree, reckless endangerment in the first degree, tampering with physical evidenсe (two counts), grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree and criminal possession of a weapon in the fourth degree.
It is herеby ORDERED that the judgment so appealed from is unanimously modified on the law and the facts by reversing those parts convicting defendant of arson in the third degree,
Memоrandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree (
We reject defendant‘s contentiоn that County Court erred in refusing to suppress his statements to the police. Prior to the Miranda warnings being given, defendant was not in custody. He voluntarily accompanied the police during their invеstigation of the crime and then to the police station, and the questioning was primarily investigatory, not accusatory (see People v Towsley, 53 AD3d 1083, 1084 [4th Dept 2008], lv denied 11 NY3d 795 [2008]; People v Duda, 45 AD3d 1464, 1466 [4th Dept 2007], lv denied 10 NY3d 764 [2008]). We conclude that a reasonable person, innocent of any crime, would not have believed that he or she was in custody (see generally People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]). Shortly after arriving at the police station, the police learned of evidence connecting defendant to thе crime and thus advised defendant of his Miranda rights, which defendant waived, prior to interrogating defendant. Contrary to defendant‘s further contentions, the detective‘s statements prior to issuing the Mirandа warnings did not vitiate or neutralize the effect of the warnings (cf. People v Dunbar, 24 NY3d 304, 315-316 [2014], cert denied 135 S Ct 2052 [2015]), and the police did not engage in tactics that were so fundamentally unfair as to render the statements involuntary (see People v Wolfe, 103 AD3d 1031, 1035 [3d Dept 2013], lv denied 21 NY3d 1021 [2013]; see generally People v Brown, 111 AD3d 1385, 1386 [4th Dept 2013], lv denied 22 NY3d 1155 [2014]).
Defendant contends that the verdict finding him guilty of
We further conclude that the jury‘s verdict with respect to arson in the second degree is not against the weight of the evidence (see generally Bleakley, 69 NY2d at 495). “A person is guilty of arson in the second dеgree when he [or she] intentionally damages a building . . . by starting a fire, and when (a) another person who is not a participant in the crime is present in such building . . . at the time, and (b) the defendant knows that fact or the circumstances are such as to render the presence of such a person therein a reasonable possibility” (
We agree with defendant, however, that the verdict finding him guilty of reckless endangerment in the first degree is against the weight of the evidence. “A person is guilty of reckless endangerment in the first degree when, under circumstances evinсing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person” (
We further agree with defendant that the verdict finding him guilty of grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree is against the weight of the evidence. With respect to each of those counts, the Peоple were required to establish that the value of the stolen motor vehicle exceeded $100 (see
Defendant contends that a police officer impermissibly usurped the jury‘s fact-finding role and acted as a summation witness in testifying that the evidence did not match defendant‘s claim of self-defense. An officer may testify as to his or her observation of the crime scene (see People v Carducci, 143 AD3d 1260, 1261 [4th Dept 2016], lv denied 28 NY3d 1143 [2017]). To the extent that the officer offered impermissible opinion testimony, we conclude that any error was harmless (see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Casanova, 152 AD3d 875, 878-879 [3d Dept 2017], lv denied 30 NY3d 948 [2017]).
Defendant‘s contention that he received ineffective assistance of counsel because defense counsel pursued the EED affirmative defense against his wishes is based on matters оutside the record and must be raised by way of a motion pursuant to
As defendant contends and the People corrеctly concede, arson in the third degree is an inclusory concurrent count of arson in the second degree (see People v Piccione, 78 AD3d 1518, 1519 [4th Dept 2010]). Thus, that part of the judgment
Finally, we note that the certificate of conviction incorrectly reflects that defendant was convicted of two counts of tampering with physical evidence pursuant to
Entered: March 13, 2020
Mark W. Bennett
Clerk of the Court