        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

384
KA 14-01561
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CANDACE J. CARTAGENA, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DANIEL J.
PUNCH OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered August 26, 2014. The judgment convicted
defendant, upon a nonjury verdict, of murder in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting her,
upon a nonjury verdict, of murder in the second degree (Penal Law
§ 125.25 [1]). Although defendant failed to preserve for our review
her challenge to the legal sufficiency of the evidence, we
“necessarily review the evidence adduced as to each of the elements of
the crime[] in the context of our review of defendant’s challenge
regarding the weight of the evidence” (People v Stephenson, 104 AD3d
1277, 1278, lv denied 21 NY3d 1020, reconsideration denied 23 NY3d
1025 [internal quotation marks omitted]).

     It is well established that “ ‘[i]ntent to kill may be inferred
from defendant’s conduct as well as the circumstances surrounding the
crime’ ” (People v Badger, 90 AD3d 1531, 1532, lv denied 18 NY3d 991).
The People presented evidence through expert testimony that the
victim’s cause of death was asphyxia by neck or chest compression.
That determination was based on the medical evidence as well as the
fact that the victim was found: (1) face up with her shirt raised up
half way; (2) with only one sock on half way; and (3) next to a pillow
on bedding that appeared to be disheveled. In addition, the People
presented evidence that defendant was the only person with the victim
at the time of the victim’s death and that defendant provided widely
inconsistent accounts of her whereabouts and actions leading up to,
and following, the victim’s death. Although circumstantial in nature,
when viewed in the light most favorable to the People, we conclude
that the evidence is sufficient to establish that defendant
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                                                         KA 14-01561

intentionally killed the victim (see Stephenson, 104 AD3d at 1278-
1279; People v Thibeault, 73 AD3d 1237, 1239-1240, lv denied 15 NY3d
810, cert denied 562 US 1293).

     Viewing the evidence in light of the elements of the crime in
this nonjury trial (see People v Danielson, 9 NY3d 342, 349), we
conclude that the verdict is not against the weight of the evidence
(see generally People v Bleakley, 69 NY2d 490, 495). While “ ‘a
finding that defendant did not intend to kill the victim[] would not
have been unreasonable . . . , it cannot be said that County Court,
which saw and heard the witnesses and thus was able to assess their
credibility and reliability in a manner that is far superior to that
of reviewing judges who must rely on the printed record, failed to
give the evidence the weight it should be accorded’ ” (Badger, 90 AD3d
at 1532). The court in this nonjury trial “was free to credit the
opinion expressed by the People’s expert[s] and reject that of
defendant’s expert” (People v Costa, 256 AD2d 809, 809, lv denied 93
NY2d 872; see People v Benson, 119 AD3d 1145, 1148, lv denied 24 NY3d
1118; People v Stein, 306 AD2d 943, 944, lv denied 100 NY2d 599,
reconsideration denied 1 NY3d 581).

     Defendant also contends that defense counsel was ineffective for
failing to preserve for our review his challenge to the legal
sufficiency of the evidence. We note, however, that we have reviewed
the sufficiency of the evidence in determining whether the verdict is
against the weight of the evidence.

     Contrary to defendant’s further contention, we conclude that the
court did not err in refusing to suppress statements she made to two
police officers en route to the Erie County Medical Center (ECMC) and
at the emergency room of the ECMC. When the police arrived at
defendant’s house, they were informed that a young girl was found dead
in a bedroom and that defendant was inside a shed in the backyard.
Defendant was removed from the shed and placed in an ambulance, where
she indicated that she had tried to commit suicide. Defendant was
then transported to the ECMC. In our view, defendant was not in
police custody when defendant made the statements during that time
period and, in any event, we conclude that the questions asked of her
were investigatory rather than accusatory in nature (see People v
Carbonaro, 134 AD3d 1543, 1547, lv denied 27 NY3d 994, reconsideration
denied 27 NY3d 1149). Furthermore, while a defendant’s involuntary
commitment under Mental Hygiene Law § 9.41 is a relevant factor in
determining whether he or she is in custody for Miranda purposes (see
People v Turkenich, 137 AD2d 363, 366-367; cf. People v Ripic, 182
AD2d 226, 232-233, appeal dismissed 81 NY2d 776, rearg denied 81 NY2d
955; see generally People v Heck, 103 AD3d 1140, 1142, lv denied 21
NY3d 1074), we conclude that it is not dispositive in this case.

     Defendant failed to preserve for our review her contention that
she was deprived of a fair trial by prosecutorial misconduct on
summation inasmuch as counsel failed to challenge any of those
comments during summation and raised those contentions for the first
time in a postsummations mistrial motion (see People v Romero, 7 NY3d
911, 912). In any event, we conclude that “the prosecutor’s isolated
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                                                            KA 14-01561

remarks were not so egregious as to deprive defendant of a fair trial
. . . , particularly considering that this was a bench trial” (People
v King, 111 AD3d 1345, 1346, lv denied 23 NY3d 1022).

     The sentence is not unduly harsh or severe.




Entered:   April 28, 2017                          Frances E. Cafarell
                                                   Clerk of the Court
