People v. Santos

200 A.D.3d 1075

155 N.Y.S.3d 822 (Mem)

The PEOPLE, etc., respondent,

v.Soily Aparicio SANTOS, appellant.

2018–15101

Ind. No. 1910–17

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 29, 2021

December 29, 2021

Thomas E. Scott, Amityville, NY, for appellant.

Timothy D. Sini, District Attorney, Riverhead, NY (Lauren Tan, Marion Tang, and Glenn Green of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., LINDA CHRISTOPHER, JOSEPH A. ZAYAS, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Anthony Senft, Jr., J.), rendered November 1, 2018, convicting her of attempted murder in the second degree, attempted assault in the first degree, attempted assault in the second degree, and endangering the welfare of a child, upon a jury verdict, and sentencing her to a determinate term of imprisonment of 16 years to be followed by a period of 5 years of postrelease supervision on the conviction of attempted murder in the second degree, a determinate term of imprisonment of 8 years to be followed by a period of 3 years of postrelease supervision on the conviction of attempted assault in the first degree, an indeterminate term of imprisonment of 1? to 4 years on the conviction of attempted assault in the second degree, and a definite term of imprisonment of 1 year on the conviction of endangering the welfare of a child, with all sentences to run concurrently. The appeal brings up for review the denial, after a hearing (Mark D. Cohen, J.), of those branches of the defendant's omnibus motion which were to suppress physical evidence and statements she made to law enforcement officials.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed on the conviction of attempted murder in the second degree from a determinate term of imprisonment of 16 years to be followed by a period of 5 years of postrelease supervision, to a determinate term of imprisonment of 10 years to be followed by a period of 5 years of postrelease supervision; as so modified, the judgment is affirmed.

The County Court properly denied those branches of the defendant's omnibus motion which were to suppress oral and written statements and certain physical evidence seized from the defendant's apartment. Contrary to the defendant's contention, the record establishes that the defendant was not in custody while at the hospital, nor when she was subsequently at the police station, prior to making an inculpatory statement. Under these circumstances, "a reasonable person, innocent of any crime, would [not] have believed she was in police custody" ( People v. Delfino, 234 A.D.2d 382, 383, 651 N.Y.S.2d 553 ; see People v. Fox, 123 A.D.3d 844, 845, 998 N.Y.S.2d 440 ). Moreover, the statements were voluntarily made after the defendant knowingly, voluntarily, and intelligently waived her Miranda rights ( Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ; see People v. Burgos, 198 A.D.3d 672, 156 N.Y.S.3d 213 ; People v. O'Brien, 186 A.D.3d 1406, 1407, 130 N.Y.S.3d 494 ). Further, the court properly found that, under the totality of the circumstances, the defendant voluntarily consented to the search of her residence (see People v. Evans, 157 A.D.3d 716, 716, 69 N.Y.S.3d 79 ; People v. Quagliata, 53 A.D.3d 670, 671–672, 861 N.Y.S.2d 792 ).

The County Court providently exercised its discretion in denying the defendant's request for a mistrial, and instead striking certain evidence from the record and issuing a curative instruction (see People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794 ; Hall v. Potoker, 49 N.Y.2d 501, 505, 427 N.Y.S.2d 211, 403 N.E.2d 1210 ; People v. Richardson, 175 A.D.2d 143, 144, 572 N.Y.S.2d 33 ). The jury is presumed to have followed the curative instruction (see People v. Hall, 266 A.D.2d 160, 161, 700 N.Y.S.2d 105 ; People v. Coursey, 250 A.D.2d 351, 351, 673 N.Y.S.2d 78 ).

The defendant's contention that the County Court improvidently exercised its discretion in permitting a forensic pathologist to testify as an expert is without merit. Contrary to the defendant's contention "a...