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

1082
KA 10-01365
PRESENT: SMITH, J.P., CENTRA, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

ROBERT E. JOHNSON, DEFENDANT-APPELLANT.


PATRICIA M. MCGRATH, LOCKPORT, FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the   Niagara County Court (Matthew J.
Murphy, III, J.), rendered January   26, 2010. The judgment convicted
defendant, upon a jury verdict, of   murder in the second degree and
criminal possession of a weapon in   the fourth degree (three counts).

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of murder in the second degree (Penal Law § 125.25
[1]) and three counts of criminal possession of a weapon in the fourth
degree (§ 265.01 [2]), stemming from the brutal murder of his wife at
their home. When the police arrived, they found the victim lying face
down on the kitchen floor in a pool of blood. A medical examiner
testified that the victim sustained 22 stab wounds and 27 cutting
wounds. The evidence established that at least three different knives
were used, and that two knives with broken handles were left
protruding from the victim’s body.

     Contrary to defendant’s contention, County Court properly refused
to suppress statements he made at the crime scene because he was not
in custody or subject to interrogation at that time (see People v
Paulman, 11 AD3d 878, 878-879, affd 5 NY3d 122; People v Kaufman, 288
AD2d 895, 896, lv denied 97 NY2d 684). The court also properly
refused to suppress statements defendant made at the police station
that evening. After about 10 to 15 minutes of questioning at his
home, defendant agreed to accompany the police to the station for
further questioning. Defendant was never restrained in any way, he
was free to use the restroom, he was offered food and drink, and he
was told that he was free to leave. After approximately three hours,
the interview ended when defendant indicated that he wanted to leave.
Under the circumstances, we agree with the court that defendant was
not in custody while at the station (see People v Petrovich, 202 AD2d
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                                                         KA 10-01365

523, 523-524, affd 87 NY2d 961; People v Murphy, 43 AD3d 1276, 1276-
1277, lv denied 9 NY3d 1008; People v Dozier, 32 AD3d 1346, 1346, lv
dismissed 8 NY3d 880).

     The court also properly refused to suppress the swab of the blood
stain taken from defendant’s torso. Defendant agreed to give his
clothing to the police and, when he removed his shirt, an officer
noticed a reddish brown stain on defendant’s chest that appeared to be
blood. When asked what it was, defendant responded that it was a
bruise. The officer swabbed the area, which later tested positive for
blood and matched the victim’s DNA. Where, as here, the police did
not obtain a warrant for the seizure of the blood evidence, “the
police had to satisfy two requirements in order to justify the action
taken. First, the police had to have reasonable cause to believe the
[blood stain] constituted evidence, or tended to demonstrate that an
offense had been committed, or, that a particular person participated
in the commission of an offense . . . Second, there had to have been
an exigent circumstance of sufficient magnitude to justify immediate
seizure without resort to a warrant” (People v Thomas, 188 AD2d 569,
571, lv denied 81 NY2d 1021; see People v Loomis, 17 AD3d 1019, 1020-
1021, lv denied 5 NY3d 830). We agree with the court that the police
had reasonable cause to believe that the blood stain on defendant’s
chest constituted evidence, and that the seizure was appropriate
because it could have been easily destroyed by defendant (see Cupp v
Murphy, 412 US 291, 296; People v Berzups, 49 NY2d 417, 427).

     Contrary to defendant’s contention, the evidence is legally
sufficient to support the conviction (see generally People v Bleakley,
69 NY2d 490, 495). Defendant further contends that the court erred in
allowing a witness to testify concerning defendant’s prior bad act,
i.e., his request to have a third-party “cut up his wife.” Even
assuming, arguendo, that the court erred in allowing that testimony,
we conclude that the error is harmless (see generally People v
Crimmins, 36 NY2d 230, 241-242). The circumstantial evidence of
defendant’s guilt is overwhelming, and there is no significant
probability that defendant would have been acquitted but for the error
(see People v Guarino, 298 AD2d 937, 937, lv denied 98 NY2d 768; see
also People v Tyes, 30 AD3d 1045, 1046, lv denied 7 NY3d 795).

     Defendant failed to preserve for our review his contention that
he was denied a fair trial by prosecutorial misconduct on summation
(see People v Williams, 128 AD3d 1522, 1524, lv denied ___ NY3d ___
[July 13, 2015]) and, in any event, the prosecutor’s remarks were
either fair response to defense counsel’s summation (see People v
Melendez, 11 AD3d 983, 984, lv denied 4 NY3d 888), or fair comment on
the evidence (see People v Graham, 125 AD3d 1496, 1498). Defendant’s
belated motion for a mistrial is insufficient to preserve for our
review his contention that a detective improperly commented on
defendant’s right to remain silent (see People v Woods, 284 AD2d 995,
996, lv denied 96 NY2d 926; People v Okon, 184 AD2d 664, 664; see also
People v Harden, 26 AD3d 887, 888, lv denied 6 NY3d 834). In any
event, although we agree with defendant that the People’s use of
defendant’s selective silence during the interrogation that occurred
                                 -3-                          1082
                                                         KA 10-01365

the day after the murder was improper (see People v Williams, 25 NY3d
185, 193), we agree with the People that the error is harmless (see
generally id. at 194).

     Defendant’s contention that the court erred in denying his CPL
440 motion is not properly before us inasmuch as defendant did not
obtain leave to appeal from this Court (see CPL 460.15; People v
Jacobs, 188 AD2d 1032, 1032, lv denied 81 NY2d 887). We have
considered defendant’s remaining contentions and conclude that they
are without merit.




Entered:   November 20, 2015                    Frances E. Cafarell
                                                Clerk of the Court
