Opinion
October 12, 1995
Appeal from the County Court of Ulster County (Vogt, J., Bruhn, J.).
The bludgeoned body of Marianne Freeman was found in her residence in the Town of Gardiner, Ulster County, on May 6, 1991. On May 14, 1991, defendant went to the Town of New Paltz Police Department after being informed by a friend that the State Police wanted to speak to him about Freeman's homicide. The State Police were called and defendant was in their company from 11:40 A.M. until 11:50 P.M. when he finished giving them incriminating oral and written statements which led to his arrest. Following a jury trial, defendant was convicted of the crime of manslaughter in the first degree and sentenced to an indeterminate prison term of 7 to 21 years. Defendant thereafter unsuccessfully moved pursuant to CPL 440.10 to vacate his conviction. Defendant appeals from the judgment of conviction and order denying his CPL 440.10 motion. We shall first consider defendant's direct appeal.
Defendant's first argument is that County Court should have suppressed his incriminating statements as products of improper custodial interrogation. The suppression hearing record shows that defendant voluntarily came to the police station and agreed to go with the State Police to their barracks; he was not handcuffed or physically restrained and was repeatedly left unguarded. The atmosphere in the interview room was not coercive and the questioning was investigatory, not accusatory or continuous; defendant was fed and allowed to sleep alone in the unlocked interview room. In view of these facts, we find that defendant's interrogation was noncustodial since an ordinary person in his position, innocent of any crime, would think he was free to go ( see, People v. Centano, 76 N.Y.2d 837, 838; People v Smith, 214 A.D.2d 845, 847; People v. Tankleff, 199 A.D.2d 550, 552, affd 84 N.Y.2d 992).
Defendant's argument that his statement was not voluntary is meritless since the record discloses that he was given his Miranda warnings twice and he acknowledged that he understood them ( see, People v. Hicks, 194 A.D.2d 930, 931, lv denied 82 N.Y.2d 719). Moreover, considering the totality of the circumstances, it is evident that defendant's will was not overborne nor his statement coerced ( see, People v. Linderberry, 215 A.D.2d 867, 869; People v. Jackson, 178 A.D.2d 851, 852, lv denied 79 N.Y.2d 1002). Lastly, assuming that the police investigator should not have spoken to defendant at the conclusion of his oral statement when defendant indicated that he wanted to think about giving a written statement, the failure to suppress the written statement was harmless error, for it merely duplicated the admissible oral statement ( see, People v. Nova, 198 A.D.2d 193, 195, lv denied 83 N.Y.2d 808; People v. Davis, 91 A.D.2d 1191).
Defendant next argues that County Court should have given a justification charge. Such a charge need not be given, however, if considering the evidence in the light most favorable to the accused, no reasonable view of the evidence establishes the elements of the defense ( see, People v. Reynoso, 73 N.Y.2d 816, 818). Applying this standard, the defense was not established. There is nothing in the record providing defendant with a reasonable belief that Freeman, an unarmed 47-year-old woman, was about to use deadly physical force against him ( see, People v Hagi, 169 A.D.2d 203, 210, lv denied 78 N.Y.2d 1011; see also, Penal Law § 35.15 [a]). The presence of Freeman's dog did not pose a deadly threat to defendant as there is no evidence that the dog was a large ferocious one trained to attack upon command of its master ( see, Penal Law § 10.00). Additionally, there is no evidence that defendant attempted to flee prior to using deadly physical force upon Freeman ( see, People v McMoore, 214 A.D.2d 893, 894).
We find that County Court did not abuse its discretion in denying defendant an adjournment since the testimony of the witness who refused to testify would have been cumulative ( see, People v. Wright, 192 A.D.2d 875, 876, lv denied 82 N.Y.2d 809; People v. Saddlemire, 121 A.D.2d 791, 793-794, lv denied 68 N.Y.2d 917). Defendant's reliance on People v. Antommarchi ( 80 N.Y.2d 247) is misplaced because the jury selection and trial were held prior to that decision, which is to be applied prospectively only ( see, People v. Mitchell, 80 N.Y.2d 519, 529). We shall not consider defendant's arguments regarding the prosecutor's allegedly improper comments during summation because the majority were not preserved for review by appropriate objection; as to the others, defendant failed to request curative instructions or move for a mistrial ( see, People v. Medina, 53 N.Y.2d 951, 953; People v. Murphy, 188 A.D.2d 742, 744, lv denied 81 N.Y.2d 890). In any event, defendant has failed to show that the prosecutor's remarks had "'a decided tendency to prejudice the jury'" ( People v Halm, 81 N.Y.2d 819, 821, quoting People v. Ashwal, 39 N.Y.2d 105, 110).
We shall not disturb the sentence imposed upon defendant since, under the circumstances of this case, it is not harsh or excessive ( see, People v. Kenyon, 188 A.D.2d 905, 906, lv denied 81 N.Y.2d 842; People v. Johnstone, 184 A.D.2d 929, lv denied 80 N.Y.2d 905).
We now turn to defendant's CPL 440.10, motion which was predicated upon alleged violations of the Rosario rule and a claim of ineffective assistance of counsel. The often-stated Rosario rule is that the People are required to provide the defendant with any recorded statement of a prosecution witness made to the police, District Attorney or the Grand Jury related to that witness's trial testimony ( People v. Rosario, 9 N.Y.2d 286, 289, cert denied 368 U.S. 866). Defendant maintains that the People violated this rule by failing to provide him with the notes pathologist Geetha Natarajan made during the autopsy she performed on Freeman. Inasmuch as defendant concedes that these notes were not in the People's possession, the critical issue is whether they were in its control ( see, People v. Flynn, 79 N.Y.2d 879, 882).
In People v. Washington ( 86 N.Y.2d 189), the Court of Appeals held that an audiotape made by an associate medical examiner of the Office of the Chief Medical Examiner of the City of New York (hereinafter OCME) did not constitute Rosario material. The basis for the holding is that the People lacked control over the audiotape since OCME is not a law enforcement agency and is independent of and not subject to the control of the prosecutor's office ( see, People v. Washington, supra; People v. Ford, 211 A.D.2d 438; People v. Nova, 206 A.D.2d 132).
Similarly, the element of control is lacking in this case since Natarajan was an independent contractor employed by the State Police as a forensic pathology consultant. In such a capacity, she was working according to her own methods without being subjected to the control of the State Police ( see generally, Searle Co. v. Medicore Communications, 843 F. Supp. 895, 904-905 [discussing duties and obligations of independent contractors]). Accordingly, we find that her notes were not Rosario material. Likewise, the X rays of Freeman's dog were not Rosario material as they are not "written or recorded statement[s]" made by a prosecution witness (CPL 240.45 [a]).
To establish a Rosario violation, it is incumbent upon a defendant to show that the claimed Rosario material was available and was not turned over to the defense ( see, People v Lent [Wild Bill], 204 A.D.2d 855, 856, lv denied 84 N.Y.2d 869, 873; People v. Boyette, 201 A.D.2d 490, 491, lv denied 83 N.Y.2d 909; People v. Miles, 136 A.D.2d 958, 959, lv denied 71 N.Y.2d 971). Defendant's final Rosario argument, premised upon the assertion that investigators' notes of their interviews with George Broglia, a prosecution witness, were not included in the "voluminous" amount of Rosario material turned over to him after trial, falls far short of satisfying his burden. In particular, defendant's experienced counsel, who made reference to the interviews during his cross-examination of Broglia, made no objection or otherwise indicated that notes had not been turned over. We further note that defendant's speculation that the prosecutor must have taken notes of his interview with Broglia does not establish that such notes were made or were available. Also, in the absence of any authority, we do not subscribe to defendant's proposition that the People are obligated to indicate, on the record, each item of Rosario material being made available to the defense.
Finally, inasmuch as defendant's ineffective assistance of counsel claim rests solely on the various Rosario violations which we have found meritless, County Court correctly concluded that the claim was devoid of merit. We have examined defendant's remaining contentions and find them unpersuasive. For these reasons, we affirm.
Cardona, P.J., Mikoll, Mercure and Casey, JJ., concur. Ordered that the judgment and order are affirmed.