*1 228] [804 NE2d 772 NYS2d v Ar- York, Respondent, State of New Appellant. Mills, thur
Argued September 18, 2003; decided October *2 OF POINTS COUNSEL (Esther Nebush, Jr., Frank J. Public Utica Defender, Cohen counsel), Lee of for I. The in appellant. the indictment of murder in the second was used the prosecution to circumvent the statute of limitations for the crime of criminally homicide, for which convicted, defendant was and the jurisdiction trial court did not have to sentence defendant for that lesser offense, since the statute of limitations for that crime Gulston, had run. v (People 2d v Di 644; Misc Pas People Lohnes, quale, 161 196; People 507; v 76 Misc 2d People v Legacy, 453; Soto, AD2d v People 491; Misc 2d People v Dickson, O’Neil, 492; AD2d v People 340; 107 Misc 2d Spa Florida, ziano v 447; People Simpson, 851; US v 175 AD2d 993.) v People Holliday, 74 AD2d II. Since wife, defendant’s Mills, Jane had asserted the trial, marital at the privilege had vehemently insisted that she did not want to testify against her him, husband because she still loved since defense had objected the introduction of her testimony that ground, the wife should not have been forced prosecution court, and the upon held pain being contempt jailed, to testify about admissions that her had husband alleg made to her edly about this incident. v (People Lifrieri, 157 Misc 598; Melski, 2d v Poppe 312; NY2d Poppe, People v 78; v 410; Fields, v People Dudley, 231; 38 AD2d People Fediuk, 881; Edwards, v People v People AD2d 987; Branch, v 224 AD2d People 926; People v 120 AD2d Naylor, 207.) 940; v 191 AD2d People Knapper, III. Since defendant’s wife, Mills, Jane had informed the that she did not prosecutor wish to testify before the about admissions her husband had made on the allegedly ground to her the marital did protected by prosecutor not privilege, her, have the to force upon being jailed, testify pain (Matter M, without first A a court order. & 61 AD2d seeking 748.) 426; Easter, 90 Misc 2d IV When defendant’s wife, Mills, Jane at the that she testified could recall allegedly to her in had made that her husband the admissions impeach prosecutor not allowed to bedroom, the their testimony given pretrial hearing testimony by reading her at testimony, asking given her if she had in the matter and procedure rules established CPL 60.35. violated the since (People Estrada, Broadwater, 1022; 116 AD2d 512.) had been insufficient evidence AD2d V. Since there produced conviction for at the trial to dismiss homicide, the defense’s motion People’s have the close of case should been the indictment at granted by Haney, 328; the court. 692.)
Boutin, NY2d (Carl Attorney, Boykin Arcuri, J. A. District Utica Michael counsel), respondent. properly I. indicted defen Helliger, degree. (People dant for murder the second *3 People Boettcher, 174; v 69 NY2d Fuller United 462; NY2d v People States, Dickson, 1120; F2d 393 v 133 AD2d 1199, 407 US People People App Austin, 585; Div 170 NY v 492; 382, v 63 Pasquale, App People Blake, 613, 616; v 161 121 Div 193 NY Di People People Legacy, Lohnes, 196; 453; 4 AD2d v 76 v 447.) Spaziano Florida, v II. Defendant’s 507; Misc 2d 468 US “privileged” (People v threats to his wife statements. Capobianco, People Branch, 224 707, 841; 218 AD2d v 86 NY2d People People Fediuk, 881; 926, 1017; AD2d 87 NY2d v 66 NY2d 410.) prosecutor Dudley, properly 24 informed v NY2d III. The comply possible her defendant’s wife of the result of failure Wiggins, grand jury subpoena. (People 872; with her v 89 NY2d People Natal, 379, 862; US Ferrara v v 75 NY2d 498 Matter Hynes, People Johnson, 949, 95 675; AD2d v 275 AD2d NY2d Shanley, People v Ian 965; 241; v Matter Beach NY2d 418.) prosecutor’s niello, direct examination NY2d TVThe comported Law Criminal Procedure defendant’s wife Tonge, People (People Saez, v 838; v NY2d 60.35. NY2d People Logan, People 1003; v 172, NY2d 802; v 261 AD2d Andujar, Fitzpatrick, People 654, 290 AD2d 44; v 40 NY2d 914.) People V Roman, AD2d 83 NY2d 648; v NY2d supported conviction evidence Sufficient Bleakley, 490; 69 NY2d homicide. v People Carr-El, 546; Contes, 620; Haney, 328; Ford, 428; NY2d People Whitlatch, 294 AD2d Boutin, 692; NY2d 703.)
OPINION OF THE COURT J. Graffeo, der in the second Defendant Arthur Mills murder]) degree connection with his role was indicted March 2000 for mur- in [2] [depraved the 1978
drowning 12-year-old Raymond Although death of Umber. drowning originally at Oneida Lake was determined to be an ac- police investigation instigated cident, a after defendant’s gave wife and his brother came each forward and statements police implicating defendant. pretrial requested In a motion, defendant that relevant lesser jury.1 Noting included offenses be submitted to the that such customarily motions are evidence, addressed at the close County granted request Court nonetheless defendant’s support any extent trial evidence would lesser included felony) charges. (see Because murder CPL 30.10 [2] [a]) has the second no statute limitations, (a class A-I recognized passage that the of time the crime between years—would and the indictment—more than 20 become an is- sought sue if defendant to have lesser included offense subject jury. period that was to a limitations submitted to the expressly willingness The court therefore conditioned its charge any consider defendant’s lesser included of- supported by upon fenses the evidence defendant’s “understand- any that, convicted of offense, lesser included he has objection limitation[s] grounds.” waived his on statute of At conference, defense counsel asked homicide, included offense of a class felony five-year E with a statute of limitations Penal Law 125.10; CPL 30.10 [2] *4 [b]), be submitted to the jury.2 The trial position court reiterated a its the constituted provides, part, may 1. CPL 300.50 the trial court submit lesser highest included offenses as an alternative to the the offense in indictment where “a of reasonable view the evidence which a find- ing that the defendant committed such lesser offense but did commit the (CPL [1]). greater” “[i]f 300.50 The statute further the establishes that court by is authorized subdivision one to submit a lesser included offense and is requested so, party either do to it must do so. In the of a absence such request, the court’s failure submit to such offense does not constitute error” (CPL 300.50 pretrial manslaughter, subject 2. Defendant’s motion included to which limitations, five-year among might of lesser statute the included offenses he request. however, proof, requested At the close of defense counsel course, criminally jury. negligent be the the homicide submitted to Of requested jury charged any could the respect not have be with to of the any to the lesser limitations defense of statute of waiver postver- indicating charge, it not entertain a that would included jury him of that of- the convict motion defendant should dict charge-down request persisted in his fense. Defense counsel right appeal such a convic- his to that defendant reserved stated grounds. view with its limitations Consistent tion on statute of objec- People’s obligations CPL over the of its under 300.50 and jury the consider tion, the instructed negligent indif- of as a lesser included offense homicide second-degree jury acquitted of The ference murder. him lesser crime. murder but convicted aside later defendant’s motion to set The trial court denied years. jury De- to 4 and sentenced defendant to verdict lVs pres- completed term of incarceration and is fendant has his ently supervision. parole under appeal, Appellate a divided Division affirmed
On defendant’s reasoning that defendant had waived his conviction, any assert of limitations defense when asked the statute jury of court criminally on the included offense lesser dissenting
negligent two Jus- homicide. One limita- tices who voted to reverse the conviction on statute of grounds appeal. granted tions leave charged jury Although offense the lesser included request, asks Court to vacate at defendant’s he now this re- his should be verdict. Defendant asserts that conviction second-degree indictment dismissed because versed by legally supported evi- murder indictment was not sufficient overcharged prosecution him dence. He depraved with contends in order to secure an indictment indifference murder circumventing five-year grand jury from the as a means of degrees applicable statute limitations CPL 30.10 [a], [2] [b]). People respond that the trial The that defendant’s demand option convicting provide him of court criminally purporting to reserve homicide, while charge, placed the court to that limitations defense given statutory obligations position CPL under an its untenable (2). People emphasize obtained that defendant 300.50 charge-down—reducing by insisting on the substantial benefit *5 years 4 potential exposure 1 to from to life to 15 his sentence offenses, second-degree manslaughter, including lesser included were time-barred.
274 (see 70.00)—and years prison Penal Law he should not be complain appeal permitted heard to manipulate on about benefit or to jury exercising leniency. into long recognized New York courts have that the of lim- statute jurisdictional itations defense is not and can forfeited be or by a waived Kohut, 183, 191 affg App [1972]; Blake, [1908], NY 616 Div [1st Dept 613, 1907]; 616-617 v Dickson, AD2d 492, [3d Dept People Brady, [2d 1987]; 1000, 1939]). Dept may Lesser included offenses be as an submitted greatest to alternative offense in “if the indictment support finding a reasonable view of the evidence would which that the defendant committed lesser such offense but did not greater. Any respecting commit the . . submission, . error such objects however, is waived the defendant unless he thereto (CPL jury [1]; retires to deliberate” 300.50 see [1984]). “[B]y affirmatively request- Ford, 275, charge jury, that the submit lesser to de- [s] challenge fendant waive his the submission of the charge appeal” (People v Richardson, NY2d 1049, 283). citing People v Ford, 62 NY2d at legally hold an We that where is indictment based on suf ficient evidence defendant’s statute limitations defense is forfeited or waived the lesser included danger prosecutorial offense. This rule eliminates overcharging to circumvent limitations. Here the grand jury legally evidence before the sufficient depraved charge. person depraved A indifference murder when “[u]nder evincing circumstances indifference to hu- recklessly engages grave man life, in conduct which creates a thereby person, risk of death another causes death of [2]). person” Legally another sufficient evi- “competent accepted dence is which, defined as evidence if as (CPL every charged” true, establish an element of offense [1]). grand jury “legal proceedings, 70.10 In the context suffi- ciency prima proof proof charged, means facie of the crimes beyond (People Bello, a reasonable doubt” People Mayo, see Courts assessing sufficiency evidence before a favorably must the evidence, evaluate “whether viewed most People, unexplained deferring and uncontradicted—and questions weight quality all as to the of the evidence—would *6 Carroll, conviction” warrant Swamp, 725, 730 see primary appeared brother, the witness who Defendant’s Raymond surrounding grand jury the to relate events the July death, that on afternoon of testified the Umber’s he 17) 16) (then (then age accompanied age had swimming. go Sylvan pier In Beach to order three friends to the group separat- pier, a fence had to climb over to access the the leaving pier. they area, the As were the the beach area from walking climbing 12-year-old the fence and toward Umber was pier. fence, defendant’s brother climbed back over Once pier group left on the member of their defendant was point, At defendant told his brother that with Umber. side “push referring planned in,” Umber, bastard to he to pier to ran distance down the do so. Defendant’s then some push Umber from behind at about brother observed defendant striking pier, to level and saw the victim fall shoulder sliding into the head the concrete before water.
According he brother, to defendant’s when and the others group push water, or heard into the the they “yelled saw Umber [defendant] help him, him and then went swimming motion, like in an then me, was under-water just gesture, he told us to run and we took off.” Based on this impression [the victim] group was “under the swim- attempted help ming,” and, therefore, none of Umber them they sought any running for him. As to a assistance were indicating head, home, friend’s defendant shook his to his swimming, fact, as defen- not, the victim was brother that group gesture dant’s earlier had led him to believe. When inquired house, if Umber was defendant’s brother arrived at the swimming, responded then and defendant no. Defendant they any reported that if of them incident threatened present go jail they at the Defendant’s all scene. other testified before brother and the witnesses who continuing explained threats a result as group keep alerted the of the silent none and directions plight. authorities to the victim’s light most favorable evidence,
This
viewed
sufficiency
legal
People,
standard
the threshold
satisfies
526).
pushing
act of
at
Defendant’s
Bello,
enough
young
his head on
him to hit
force to cause
victim with
pier
and defendant’s
fall
the water
and then
into
the concrete
submerged
paired
the testi-
victim,
abandonment
mony
regarding
that defendant misled his friends
the victim’s
peril, discouraged
offering
them from
assistance and subse-
quently
remaining
threatened his friends into
silent once
prima
truth,
learned the
establish a
facie case
indif-
(see People
ference
Kibbe,
murder
[1974],
Defendant also contends that in trial court erred admitting testimony objection of his wife over his his regarding protected statements to her the victim’s death by privilege. the marital This contention is meritless. (b) provides “[a]
CPLR 4502
husband or wife shall not
required,
living,
be
or, without
of the
allowed,
consent
other
by
to disclose a confidential communication made
one
marriage.”
during
privilege,
“[d]esigned
other
The
which
protect
strengthen
encompasses only
bond,
marital
. . .
those statements that are ‘confidential,’
are
induced
prompted
marital
affection,
relation and
confidence and
loyalty engendered by
relationship”
(Poppe Poppe,
such
v
3
rearg
NY2d 312,
[1957],
315
[1957];
denied
tions, dissent and would vacate defendant’s indifference murder Defendant was indicted (2). He found not of Penal Law 125.25 violation charge, convicted on the however, and was 125.10). Defendant Law prison years has served to 4 was sentenced that sentence. The evidence was that U/s then 1978, defendant, pushed boy years years cement old, old into water and youths had been in an defendant and other area where some years swimming. charges brought later were not until angered hav- brother, that defendant was when the defendant’s *8 police and an wife, an went to the affair with the brother’s investigation resulted. depraved murder, indifference
Defendant was convicted not of criminally negligent defendant, trial, of Prior to but homicide. acting it the trial court that on the of an indication from basis charge a included offense unless would not consider a on lesser charge prior on trial, for it moved a the defendant moved criminally manslaughter the lesser of and included offenses prema- People opposed negligent motion as homicide. on the trial that would the decision ture. The court ruled it base charge requested Following a trial, the defendant evidence. criminally negligent offense of a included on homicide as lesser request depraved a Defendant did indifference murder. manslaughter charge in the of the lesser included offense on judge requested degree.1 the defendant second The trial homi- of limitations for waive statute argued the lesser 1. trial court nor the noted Neither the [2]) (Penal § 125.25 was depraved Law indifference murder included offense to manslaughter (Penal [1]) § than 125.15 rather degree Law in the second (2) 125.10). § Law 125.25 criminally negligent Penal Law degree ... 2. Under states, second when: person guilty of murder “A is recklessly life, evincing depraved to human indifference circumstances a cide. The defendant refused to do so but asserted that he was charge. gave charge entitled to the The court as a lesser by requesting charge, included offense and ruled that defen- right object dant waived his to a conviction sentence. and Following pursuant trial, defendant moved to CPL 330.30 and criminally negligent 30.10 to set aside the conviction of homi- ground cide on that it violated the statute limitations. again Defendant asserted that he did not waive the limitations. The trial court denied the motion. appeal prosecution
On this contends that when the defen requested charge criminally negligent dant homicide, he waived the defense of Defendant, the statute of limitations. specifically however, refused waive the statute of limitations. respect Thus, no waiver with oc statute of limitations Moreover, forfeiture, curred. there no is, a loss of a statutory right to limitations, assert the bar the statute of merely charge a a lesser included offense.
If there
awas
reasonable view of the evidence that defendant
crime,
committed the lesser
he was entitled to the instruction
(2)
on
homicide. CPL
if
300.50
states that
requests
charge
the defendant
a
a lesser included offense
there is a reasonable view of the evidence that the defen-
dant committed the lesser included offense but did not commit
greater
give
By
charge.
offense, the court “must”
objects
contrast, a defendant who
to the lesser included
given
must so state
it
is
or he or
she waives the
(CPL
object
being given
to it
In
300.50
v Richardson
(88
[1996])
(62
[1984]),
NY2d 1049
v Ford
NY2d 275
engages
grave
person,
conduct which creates
risk of death to another
thereby
person.”
(1),
causes the death of
another
Penal
murder, states,
person
included offense of
“A
manslaughter
recklessly
in the
1.
*9
second
when: He
causes
death of
the
person.”
125.10,
manslaugh-
another
Penal Law
a lesser included offense of
ter,
degree, states,
person
guilty
criminally negligent
second
“A
of
homicide
when,
negligence,
person.”
with criminal
he
the
of
causes
death
another
Arguably,
give
charge
2.
the trial court
on
should have refused to
the
criminally negligent
giving
charge
manslaughter
on
without first
degree.
charged
jury
in the second
The court
that
it to
the
for
convict defen-
degree,
dant of murder in the
prove
second
the
had to
that defendant
engaged
indicating
in reckless conduct
human life.
indifference to
charge
manslaughter
degree
A
on the lesser included offense
the
of
second
require
prove
recklessly
the
that
the
defendant
caused
death
person.
jury
of another
If the
found the
both murder
manslaughter
degree,
charge
in the second
in the
second
the
criminally negligent
appropriate.
homicide would have been
defendant’s
for the
majority
proposition
both cited
he has waived
can
because
and sentence
stand
conviction
case,
argued
defendants
in this
of limitations
been
offense should not have
the lesser included
charge
each
at trial. Because
charge
to the
object
but failed to
given,
it
he waived
given,
was
charge
in the
when
acquiesced
about
complain
heard to
and could not be
objection
cases do not address
offense. Those
conviction of the lesser
statute of
us,
the effect
namely
currently
the issue
the lesser
of and sentence upon
limitations on the conviction
Moreover,
majority
cited
charge.
other cases
included
Blake,
193 NY
Kohut,
1907];
v Dick-
Dept
[1st
affg
1987])
all stand
son,
Dept
proposition
[3d
I agree with not testify against that his wife could contention confession to privilege. him marital Defendant’s of and threats made the course of his abuse during his wife was Therefore, did not privilege apply. to his wife. the marital of the defendant. I the conviction would reverse Accordingly, and Read Kaye Judges Chief Judge Ciparick, Rosenblatt dissents G.B. Smith Judge Judge concur with Graffeo; in a separate opinion. votes reverse Order affirmed.