2018 NY Slip Op 02797
April 25, 2018
This is an appeal from a judgment made in the County Court, Westchester County from January 17, 2012, which convicted him of murder in the 2nd degree. This appeal addresses the denial of those branches of the defendant’s omnibus motion which suppressed DNA evidence and identification testimony.
The court maintains that the court properly denied the defendant’s omnibus motion to suppress DNA evidence (People v. Adams 120 AD3d 1253, People v. Hobson 111 AD3d 958).
The court also denied the portion of the omnibus motion which was to sever the counts of the indictment. This was because the proof for each offense was admissible as evidence (CPL 200.20 [b]. Because of the offenses were joined in one indictment, the court did not have the authority to sever them (People v Bongarzone 69 NY2d 895, CPL 200.20).
The court was correct in exercising their discretion pursuant to CPL 60.42 in preventing evidence regarding the defendant’s sexual history (People v Mandel 48 NY2d 952). This evidence is inadmissible pursuant to CPL 60.42(2) because the victim had never been convicted of a prostitution offense (People v Smith 27 AD3d 242). The evidence was inadmissible under CPC 60.42 because the offer of proof was inadequate (People v Nunez 9 AD3d 471, People v Mitchell 10 AD3d 554).
The defendants questioning of the legal sufficiency of the evidence was unpreserved for the reviews by the appellate court (CPL 470.05 ).
When the evidence is viewed as to what is most favorable to the prosecution, the court finds it was adequate to prove the defendant’s guilt beyond a reasonable doubt under CPL 470.15.
The court is satisfied with the guilty verdict in light of the evidence (People v. Romero 7 NY3d 633).
The crime of murder in the second degree is one form of homicide, which is basically defined as conduct which causes the death of a person. Other types of this crime include murder in the first degree, criminally negligent homicide, and manslaughter.
The crime of second-degree murder can be done in the following ways:
- Actions that intend to cause the death of another,
- Exhibiting a “depraved indifference for human life,” or the defendant engages in conduct that creates a grave risk of death of another person;
- Attempts or does commit a felony and in the course of the felony causes the death of another;
- Exhibiting “depraved indifference for human life,” an 18-year-old or older recklessly engages in conduct that causes grave risk to a child under 11 years of age or younger, and causes the death of that person;
- While committing a certain crime the defendant who is at least 18 years old intentionally causes the death of a person less than 14 years old.
This law is set out in New York Penal Code Section 125.25. The defenses to this crime include:
- Assisted suicide
- Extreme emotional disturbance
- The defendant 1) didn’t commit the offense; 2) the defendant wasn’t armed with a deadly weapon; 3) the defendant had no grounds to believe anyone else was armed; 4) had no grounds to believe that another participant intended to engage in conduct that would cause serious injury or death;
- Mental disease;
- Under 13 years of age;
- Defense of another person;
If you have been charged with murder, or a related crime such as assault or battery, it is important to get legal assistance promptly. Speak to the experienced lawyers at Stephen Bilkis and Associates for guidance and a free consultation. Call today at 1-800-NYNYLAW.