697 N.Y.S.2d 218 | N.Y. App. Div. | 1999
—Judgment unanimously reversed on the law, motion to suppress granted in part and indictment dismissed without prejudice to the People to re-present any appropriate charges under count two of the indictment to another Grand Jury in accordance with the following Memorandum: Defendant contends that County Court erred in permitting the People’s medical expert to render an opinion that the cause of death of the infant victim was “homicidal suffocation” and thus that reversal is required. We agree. The People’s expert testified that there were no medical findings to explain the death of the infant. She further testified that the results of the autopsy equally supported two possible causes of death, i.e., suffocation and Sudden Infant Death Syndrome (SIDS). The expert opined, however, that the cause of the infant’s death was “homicidal suffocation”. She also stated that her opinion that the death was caused by homicidal suffocation rather than SIDS was not based on medical evidence but rather was based on her review of statements by defendant and other individuals.
We also agree with defendant that reversal is required based on the court’s failure to grant his suppression motion to the extent that it sought to exclude defendant’s statements made to investigators from the District Attorney’s office and the mother of the infant. The record establishes that, when those statements were made, defendant was incarcerated in a ward for prisoners at the Central New York Psychiatric Center (CNYPC) on a pending sodomy indictment on which he was represented by counsel. On October 3, 1994, while defendant was in custody at CNYPC, investigators from the District Attorney’s office questioned defendant concerning his involvement in the death of the infant victim. Because defendant was represented on the charge for which he was being held in custody, the investigators’ interrogation of defendant in the absence of counsel on any subject related or unrelated to the formal representation violated his right to counsel (see, People v Burdo, 91 NY2d 146, 149-151; People v Rogers, 48 NY2d 167, 169).
Similarly, the statements by defendant to the infant’s mother while he was in custody at CNYPC on September 21, 1994 and October 3, 1994 were obtained in violation of his right to counsel. While defendant was in custody at CNYPC, the police approached the infant’s mother and requested that she visit defendant and speak to him concerning his involvement in the death of the infant. The police also requested that she wear a
We note in addition that the court abused its discretion in its Sandoval ruling, which permitted the People to introduce in evidence the heinous aspects of defendant’s prior sodomy conviction (see, People v Bennette, 56 NY2d 142, 147-149; cf., People v Edmunds, 166 AD2d 273, 274, lv denied 77 NY2d 905). We have reviewed defendant’s remaining contentions and conclude that they are without merit.
Consequently, we reverse the judgment of conviction and grant defendant’s suppression motion in part. Because defendant was indicted for two counts of murder in the second degree (Penal Law § 125.25 [1], [2]) but was convicted of the lesser included offense of criminally negligent homicide under count two of the indictment, the indictment must be dismissed without prejudice to the People to re-present any appropriate charges under count two of the indictment to another Grand Jury (see, People v Gonzalez, 61 NY2d 633, 635; People v Jackson, 167 AD2d 893, 894). (Appeal from Judgment of Oneida County Court, Kirk, J. — Criminally Negligent Homicide.) Present — Pine, J. P., Lawton, Wisner, Hurlbutt and Balio, JJ.