                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 3, 2015                   105435
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

SCOTT CHAPLIN,
                    Appellant.
________________________________


Calendar Date:   October 23, 2015

Before:   McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.

                             __________


     Theresa M. Suozzi, Saratoga Springs, for appellant.

      Thomas J. O'Connor, Special Prosecutor, Albany, for
respondent.

                             __________


McCarthy, J.P.

      Appeal from a judgment of the County Court of Rensselaer
County (Ceresia, J.), rendered September 10, 2012, upon a verdict
convicting defendant of the crime of murder in the second degree.

      On a morning in March 1994, the victim was found bludgeoned
to death at her place of employment, inside of a staff apartment
of a residence for the developmentally disabled. Interviews with
the victim's family members indicated that defendant, who was 17
years old at the time, had been sexually involved with the
victim. Shortly thereafter, defendant made various statements to
the police denying any involvement in the homicide. In 2004, DNA
analysis of evidence obtained from the crime scene revealed that
saliva left on a paper towel roll matched defendant's DNA
profile. In April 2011, additional DNA analysis revealed that
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defendant could not be excluded as a contributor to the DNA
obtained from a piece of paper towel that had been wrapped around
the bedroom doorknob of the staff apartment. In May 2011, a
witness was located who implicated defendant and a codefendant in
the victim's murder and robbery. After grand jury indictment and
then a jury trial, defendant was convicted of murder in the
second degree and sentenced to 25 years to life in prison.
Defendant appeals, and we affirm.

      Defendant's contention that his constitutional right to a
speedy trial was violated is without merit. "In determining
whether there is an undue delay, the trial court must consider
'(1) the extent of the delay; (2) the reason for the delay; (3)
the nature of the underlying charge; (4) whether or not there has
been an extended period of pretrial incarceration; and (5)
whether or not there is any indication that the defense has been
impaired by reason of the delay'" (People v Montague, 130 AD3d
1100, 1101 [2015], quoting People v Taranovich, 37 NY2d 442, 445
[1975]). Where, as here, the delay is extraordinary, "close
scrutiny of the other factors, especially the question of why the
delay occurred," is required (People v Romeo, 12 NY3d 51, 56
[2009], cert denied 558 US 817 [2009]).

      The People introduced evidence indicating that DNA
technology in 1994 would have required the destruction of the two
samples of biological material that had been collected. Further
evidence established that technology at the time that the samples
were tested – in 2004 and 2011 – did not require such
destruction. In addition to this physical evidence becoming
probative, a witness came forward in May 2011 implicating
defendant in the murder. Such evidence demonstrated a good faith
basis for the delay in proceeding with the prosecution (see
People v Decker, 13 NY3d 12, 16 [2009]; People v Gaston, 104 AD3d
1206, 1206-1207 [2013], lv denied 22 NY3d 1156 [2014]).

      Turning to the remaining factors, the charge of murder in
the second degree is "inarguably a very serious offense" (People
v Decker, 13 NY3d at 15). Further, defendant was never
incarcerated during the 17-year delay (see People v Swan, 90 AD3d
1146, 1147 [2011]). In addition, defendant's generic claim that
witnesses may have moved and that their recall of events is no
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longer as strong as it once was is too speculative to carry
significant weight in the analysis (see People v King, 62 AD3d
1162, 1163 [2009]). Although defendant faced a substantial
delay, upon considering these factors, we find that his
constitutional right to a speedy trial was not violated (see
People v Vernace, 96 NY2d 886, 888 [2001]; People v Tuper, 118
AD3d 1144, 1146 [2014], lv denied 25 NY3d 954 [2015]; People v
Chatt, 77 AD3d 1285, 1285 [2010], lvs denied 17 NY3d 793, 800
[2011]).

      The introduction of certain statements made by defendant to
law enforcement officials did not violate his constitutional
rights. Miranda safeguards "are not triggered unless a suspect
is subject to 'custodial interrogation'" (People v Berg, 92 NY2d
701, 704 [1999], quoting Miranda v Arizona, 384 US 436, 444
[1966]). "The standard for assessing a suspect's custodial
status is whether a reasonable person innocent of any wrongdoing
would have believed that he or she was not free to leave" (People
v Paulman, 5 NY3d 122, 129 [2005] [citations omitted]). This
inquiry is informed by many factors, including "'the location,
length and atmosphere of the questioning, whether police
significantly restricted defendant's freedom of action, the
degree of defendant's cooperation, and whether the questioning
was accusatory or investigatory'" (People v Henry, 114 AD3d 1025,
1026 [2014], lv dismissed 22 NY3d 1199 [2014], quoting People v
Pagan, 97 AD3d 963, 966 [2012], lv denied 20 NY3d 934 [2012]).

      Defendant's first interview with police took place at his
home, in the presence of defendant's father, and it lasted
approximately 20 to 30 minutes. The evidence indicates that
defendant's movements were not restrained and that he could have
ended the interview at any time. Defendant's second interview
took place over a 90-minute period after defendant and his father
spontaneously and voluntarily appeared at a police station.
According to an interviewing police officer, defendant informed
him that he wanted to "clear the air." Defendant's third and
final interview – which included a polygraph examination and
occurred in 2011 – took place upon defendant's request. Further
uncontested evidence established that defense counsel conducted
substantial negotiations regarding the conditions upon which
defendant would participate in such an interview. The interview
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took place over 3½ hours, after which defendant left.
Considering the totality of circumstances surrounding each of the
aforementioned interviews, none of defendant's statements was
made while he was in custody (see People v Mercado, 113 AD3d 930,
931-932 [2014], lv denied 23 NY3d 1040 [2014]; People v Bennett,
179 AD2d 837, 838-839 [1992]). Relatedly, defendant had no right
to have counsel present during the third interview, given that it
was noncustodial and no criminal action against defendant had
been commenced (see People v Lopez, 16 NY3d 375, 380 [2011]).
Accordingly, defendant's suppression arguments are without merit.

      Defendant's conviction was based on legally sufficient
evidence, and it was not against the weight of the evidence. As
relevant here, to convict defendant of murder in the second
degree on a felony murder theory, the People were required to
prove that defendant committed or attempted to commit a robbery
"and, in the course of and in furtherance of such crime or of
immediate flight therefrom, he, or another participant, if there
[were] any, cause[d] the death of" the victim (Penal Law § 125.25
[3]; see People v Henderson, 25 NY3d 534, 539 [2015]; People v
Jackson, 100 AD3d 1258, 1259 [2012], lv denied 21 NY3d 1005
[2013]). Proof of defendant's intent to murder the victim was
not necessary; rather, the People were required to show that
defendant specifically intended to commit the predicate felony
(see People v Stokes, 88 NY2d 618, 623 [1996]). To establish
that defendant committed a robbery, the People were required to
show that defendant forcibly stole property from the victim for
the purpose of retaining the same (see Penal Law § 160.00).
Notably, intent to commit a robbery may be inferred from
defendant's conduct and the surrounding circumstances (see People
v Gordon, 23 NY3d 643, 650 [2014]).

      Proof implicating defendant included the introduction of
DNA evidence relating to two samples of DNA, which, when
considered together, strongly indicated that defendant had been
at the scene of the murder on the night in question. This DNA
evidence, along with other overwhelming evidence confirming that
defendant had a romantic relationship with the victim, could be
considered evidence of defendant's consciousness of guilt, as it
utterly contradicted defendant's prior repeated claims that he
had not had any relationship with the victim. Testimony also
                               -5-                105435

indicated that the victim generally carried a purse with large
sums of cash and that such purse was not with the victim after
her death. An individual who was defendant's neighbor and friend
in 1994 testified that defendant explained to him, shortly after
the victim's death, that the police would not find the victim's
purse and that witnesses were incorrect in their belief that a
certain car had been at the scene of the crime. That same
witness explained that defendant, prior to the victim's death,
had also told him that the victim had a significant amount of
money.

      Contrary to defendant's contention, the People were not
required to prove the value of the contents of the victim's purse
(see People v Acevedo, 40 NY2d 701, 707 [1976]). The
aforementioned evidence was sufficient to support defendant's
conviction of murder in the second degree on a felony murder
theory (see People v Ramos, 129 AD3d 1205, 1206-1207 [2015], lv
denied 26 NY3d 971 [2015]; People v Griffin, 122 AD3d 1068, 1069-
1070 [2014], lv denied 25 NY3d 1164 [2015]).1 Further, deferring
to the jury's resolution of credibility issues, the conviction
was not against the weight of the evidence (see People v
Callicut, 101 AD3d 1256, 1257-1259 [2012], lvs denied 20 NY3d
1096, 1097 [2013]; People v Jackson, 100 AD3d at 1259-1261).

      Defendant's contention that the People should not have
elicited testimony that defendant committed the bad acts of
buying and smoking marihuana is unpreserved (see People v Cox,
129 AD3d 1210, 1214 [2015], lv denied 26 NY3d 966 [2015]) and
does not warrant any corrective action in the interest of
justice. Contrary to certain of defendant's contentions
regarding the best evidence rule, defendant's written statements
to law enforcement were not introduced as photographs or
photocopies. The writings that were introduced were carbon
copies, which are originals for the purposes of the best evidence
rule (see People v Sims, 127 AD2d 712, 713 [1987]; People v Kolp,
49 AD2d 139, 141 [1975]). Defendant's remaining argument
regarding the best evidence rule is also without merit, as the


     1
        Defendant does not contest the jury's conclusion that the
predicate murder occurred.
                              -6-                  105435

writing that it regards was not entered into evidence.

      Defendant's assertions that Brady materials were improperly
withheld from him is without support in the record, and his
speculation that such evidence exists is insufficient to
establish a Brady violation (see People v Parkinson, 268 AD2d
792, 793 [2000], lv denied 95 NY2d 801 [2000]). In addition,
given that defendant supplied the language that County Court used
in its circumstantial evidence charge to the jury, his current
contention that such a charge was improper is unpreserved (see
People v Sabines, 121 AD3d 1409, 1411-1412 [2014], lv denied 25
NY3d 1171 [2015]; People v Davis, 105 AD3d 1095, 1097 [2013], lv
denied 21 NY3d 1003 [2013]). In any event and contrary to
defendant's contention, County Court was not required to use the
phrase "moral certainty" in its circumstantial evidence charge
(People v Sanchez, 61 NY2d 1022, 1024 [1984]; see People v
Gonzalez, 54 NY2d 729, 730 [1981]). To the extent not already
discussed herein, defendant's remaining contentions are without
merit.

     Egan Jr., Lynch and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
