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

1368
KA 11-00688
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID HECK, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered March 25, 2011. The judgment
convicted defendant, upon a jury 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 him
upon a jury verdict of murder in the second degree (Penal Law § 125.25
[1]) for having intentionally caused his mother’s death at their home
in the Town of Tonawanda, contending that reversal is required for a
number of reasons. We first address defendant’s challenges to the
weight and sufficiency of the evidence of his guilt (see generally
People v Bleakley, 69 NY2d 490, 495). “In assessing legal
sufficiency, a court must determine whether there is any valid line of
reasoning and permissible inferences which could lead a rational
person to the conclusion reached by the [factfinder] on the basis of
the evidence at trial” when that evidence is viewed in the light most
favorable to the People (People v Cahill, 2 NY3d 14, 57 [internal
quotation marks omitted]; see People v Contes, 60 NY2d 620, 621).
Here, the proof of defendant’s guilt is not only legally sufficient to
convict, it is also fairly characterized as overwhelming. The
evidence at trial established that defendant failed to notify police
of his mother’s death for several days; falsely stated to his
neighbors that she was alive despite his knowledge of her death;
staged the crime scene to make it appear that his mother had
accidentally fallen and hit her head and then proceeded to tailor his
account of her death accordingly; admitted to a fellow jail inmate
while awaiting trial that he had killed his mother with a hammer; and
had both a motive and the opportunity to commit the crime. In
addition, a hammer was missing from the otherwise well-stocked toolbox
                                 -2-                          1368
                                                         KA 11-00688

in defendant’s home, and forensic evidence conclusively established
that the victim did not die from a fall, as defendant had originally
claimed, but rather from 13 blows to her head.

     We similarly reject defendant’s contention that the verdict is
against the weight of the evidence (see generally People v Danielson,
9 NY3d 342, 348-349). Aside from the incriminating evidence set forth
above, defendant’s theory of the case at trial, which was not that his
mother had died from a fall but rather that an unknown intruder had
killed her while he was out shopping, was unsupported by any credible
evidence. Defendant was the only person who had lawful access to the
house apart from his mother, and there was no evidence that the house
had been broken into or that anything had been stolen from it.
Moreover, the fact that the victim was struck 13 times in the head is
consistent with the People’s theory that this was a crime of passion
and not, as defense counsel suggested, the act of an intruder who
unexpectedly encountered the occupant of a house in the course of a
burglary.

     We next consider defendant’s challenges to the court’s refusal to
suppress his various statements to police. We initially conclude that
the police lawfully entered defendant’s home pursuant to the emergency
exception to the warrant requirement of the Fourth Amendment to the
United States Constitution and art I, § 12 of the New York
Constitution (see People v Mitchell, 39 NY2d 173, 177-178, cert denied
426 US 953; see also Brigham City v Stuart, 547 US 398, 406). Here,
officers were responding to a 911 call from someone in that house who
was heard moaning and groaning but who did not otherwise speak to the
operator. Thus, defendant’s statements to police at his home were not
the fruit of an unlawful entry, and the court therefore properly
refused to suppress them (see People v Stergiou, 279 AD2d 387, 387, lv
denied 96 NY2d 835). We note that defendant does not contend that he
was subjected to custodial interrogation at the home.

     Defendant further challenges the admissibility of statements he
made to police in the absence of Miranda warnings while in a private
room at Kenmore Mercy Hospital (KMH), where he had been taken for
treatment of a prior self-inflicted wound following the discovery of
his mother’s body. Although defendant argues that he was in custody
at KMH and was thus entitled to Miranda warnings before being
interrogated there (see generally People v Yukl, 25 NY2d 585, 589,
cert denied 400 US 851), the record does not disclose whether, at the
time he made the statements at issue, he was in the custody of KMH
mental health authorities pursuant to Mental Hygiene Law § 9.39 (a)
(1) or whether, conversely, he was in the custody of police pursuant
to section 9.41 (see Gonzalez v State of New York, 121 Misc 2d 210,
214-215, revd on other grounds 110 AD2d 810, appeal dismissed 67 NY2d
647). While the interplay of those provisions might circumscribe the
applicability of the standard Yukl analysis that defendant urges us to
undertake (see People v Ripic, 182 AD2d 226, 233, appeal dismissed 81
NY2d 776), we ultimately need not consider the issue further because,
for the reasons that follow, we conclude that any error in admitting
the KMH statements is harmless under these circumstances.
                                 -3-                          1368
                                                         KA 11-00688

     The error, if any, is harmless primarily because defendant
repeated the purportedly inadmissible statements approximately 3½
hours later to another police officer after he was transferred to Erie
County Medical Center (ECMC) and advised of his Miranda rights. Thus,
even if the KMH statements should have been suppressed, the ECMC
statements would still have been properly admitted at trial; given the
passage of time, the involvement of different police personnel, and
the change in location, there had been a “sufficiently ‘definite,
pronounced break’ ” in the questioning to dissipate any taint of a
prior Miranda violation upon the later statements (People v Paulman, 5
NY3d 122, 130-132, quoting People v Chapple, 38 NY2d 112, 115). We
also note that, in both his KMH and ECMC statements, defendant
vehemently denied any involvement in the victim’s death and made no
direct admissions of guilt. There is therefore no reasonable
possibility that defendant would have been acquitted had his non-
incriminating statements at KMH been suppressed and, because the
evidence of defendant’s guilt is otherwise overwhelming, we conclude
that any error in admitting those statements is harmless (see
generally People v Crimmins, 36 NY2d 230, 237; cf. People v Foster, 72
AD3d 1652, 1655, lv dismissed 15 NY3d 750).

     We reject defendant’s further contention that the court
improperly permitted the introduction of demonstrative evidence at
trial in the form of a hammerhead model (see People v Gorham, 72 AD3d
1108, 1110, lv denied 15 NY3d 773; Rojas v City of New York, 208 AD2d
416, 417, lv denied 86 NY2d 705; see generally People v Del Vermo, 192
NY 470, 482-483). We likewise reject defendant’s contention that the
court improperly received the victim’s autopsy photographs in
evidence. The photographs were relevant to establish the cause of her
death and to counter defendant’s statement to the police at his home
that she had died from an accidental fall (see People v Pobliner, 32
NY2d 356, 369-370, rearg denied 33 NY2d 657, cert denied 416 US 905;
People v Alvarez, 38 AD3d 930, 931-932, lv denied 8 NY3d 981).

     Defendant’s contention that he was deprived of a fair trial by
prosecutorial misconduct during summation is unpreserved for our
review (see People v Romero, 7 NY3d 911, 912). In any event, although
comments by the prosecutor denigrating the defense’s theory of the
case were indeed improper (see People v Gordon, 50 AD3d 821, 822),
they were not so pervasive or egregious as to deprive defendant of a
fair trial (see People v Jacobson, 60 AD3d 1326, 1328, lv denied 12
NY3d 916). Nor can it be said that defendant received ineffective
assistance of counsel due to the lack of any objection to those
improper comments. Rather, defense counsel provided defendant with
meaningful representation throughout the proceedings (see generally
People v Baldi, 54 NY2d 137, 147; cf. People v Fisher, 18 NY3d 964,
966-967).

     We have considered defendant’s remaining contentions and conclude
that they lack merit.

Entered:   February 1, 2013                     Frances E. Cafarell
                                                Clerk of the Court
