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

860
KA 09-00469
PRESENT: SCUDDER, P.J., SMITH, FAHEY, AND PERADOTTO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STACEY R. CASTOR, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


BIANCO LAW OFFICE, SYRACUSE (RANDI JUDA BIANCO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered March 5, 2009. The judgment convicted defendant,
upon a jury verdict, of murder in the second degree, attempted murder
in the second degree and offering a false instrument for filing in the
first degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting her following a jury trial of, inter alia, murder in the
second degree (Penal Law § 125.25 [1]), based upon the death of her
second husband from poisoning with antifreeze, and attempted murder in
the second degree (§§ 110.00, 125.25 [1]), based upon the poisoning of
her daughter with a combination of pharmaceutical drugs and alcohol.
In appeal No. 2, defendant appeals from an order denying her motion
pursuant to CPL 440.10 seeking to vacate the judgment, inter alia, on
the ground that her statement to the police on September 7, 2007 was
taken in violation of her indelible right to counsel.

     Defendant’s second husband was found dead on August 22, 2005, and
his death from poisoning with antifreeze was determined by the Medical
Examiner to be a suicide. More than two years later, on September 7,
2007, defendant agreed to discuss her husband’s death with the police,
and she waived her Miranda rights and provided a statement. Two days
before speaking to defendant, the police had received the results of
an autopsy performed on the exhumed body of defendant’s first husband,
who had died in 2000, which established that he too had died from
poisoning with antifreeze. On September 14, 2007, defendant’s
youngest daughter found her 20-year-old sister, defendant’s eldest
daughter (daughter), unresponsive in her bedroom as a result of
                                 -2-                           860
                                                         KA 09-00469

ingesting prescription drugs and alcohol. In a one-page typed
document that was purported to be the daughter’s suicide note
(purported suicide note), it was stated that the daughter had killed
both her father, defendant’s first husband, and her stepfather,
defendant’s second husband. When the daughter regained consciousness,
she denied that she had attempted to kill herself and that she had
written the purported suicide note.

     We address first defendant’s contentions in appeal No. 1. We
reject defendant’s contention that County Court abused its discretion
in permitting the People to introduce evidence in their direct case of
the uncharged murder of defendant’s first husband. Contrary to
defendant’s contention, the court properly determined that there was
clear and convincing evidence that defendant committed that uncharged
murder. It is well established that where, as here, the identity of
the perpetrator of the uncharged crime is unknown, the court must
determine that there is clear and convincing evidence of both a unique
modus operandi and defendant’s identity as the perpetrator of the
uncharged crime before allowing the People to present evidence of the
uncharged crime on the issue of identity in their direct case against
defendant (see People v Robinson, 68 NY2d 541, 550). First, we
conclude that “the People presented clear and convincing evidence that
defendant committed the [uncharged murder of her first husband] by
using a distinctive and unique modus operandi,” i.e., poisoning with
antifreeze (People v Curry, 82 AD3d 1650, 1650, lv denied 17 NY3d 805;
see People v Beam, 57 NY2d 241, 252-253; cf. People v Crawford, 4 AD3d
748, 749, lv denied 2 NY3d 797). Second, we conclude that the People
presented clear and convincing evidence that defendant was the
perpetrator of her first husband’s uncharged murder. The People’s
evidence at trial establishes that defendant had purchased a life
insurance policy on the life of her first husband; that the daughter
was 12 years old when her father, defendant’s first husband, died and
thus was unlikely to have committed the fairly sophisticated murder of
her father; that defendant had refused to consent to an autopsy of her
first husband, who was 38 years old at the time of his death; that the
purported suicide note referenced the fact that defendant’s first
husband also had ingested rat poison, a fact that could be known only
by the person who killed him; and that defendant admitted to having
rat poison in their home.

     Contrary to defendant’s further contention, the court properly
determined that the evidence of the uncharged murder was inextricably
interwoven with the evidence of the charged crimes inasmuch as the
uncharged murder was discussed in the purported suicide note and was
probative evidence of the motive for the attempted murder of the
daughter. In order “[t]o be inextricably interwoven . . . the
evidence must be explanatory of the acts done or the words used in the
otherwise admissible part of the evidence” (People v Ventimiglia, 52
NY2d 350, 361). Here, the People’s expert explained that the first
draft of the purported suicide note had been written on the family’s
computer four days after defendant learned that the body of her first
husband had been exhumed. Further, the purported suicide note
explained why the daughter killed both of defendant’s husbands and
included numerous references to the uncharged murder. Thus, the
                                 -3-                           860
                                                         KA 09-00469

evidence of the uncharged murder provided necessary background
information to explain references to that crime in the purported
suicide note, was probative of the motive for the attempted murder of
defendant’s daughter, and placed the timing of the writing of the
purported suicide note and attempted murder of the daughter “in
context” (People v Dorm, 12 NY3d 16, 19; see People v Carey, 92 AD3d
1224, 1225, lv denied 18 NY3d 992).

     Defendant failed to preserve for our review her contention that
the court erred in failing to charge the jury that it could consider
evidence of the uncharged murder only if it determined that the People
proved by clear and convincing evidence that defendant killed her
first husband (see People v Perez, 89 AD3d 1393, 1394, lv denied 18
NY3d 961). In any event, that contention lacks merit inasmuch as the
court, rather than the jury, must make the determination whether the
People have presented clear and convincing evidence that defendant was
the perpetrator of the uncharged crime (see Robinson,68 NY2d at 550).
We further conclude that the court properly instructed the jury that
the evidence of the uncharged murder could be considered only for the
limited purpose of determining the identity of the “perpetrator in
this case” (see id. at 549-550).

     We reject defendant’s contention that the court erred in refusing
to suppress a statement she made to the police on September 14, 2007
at the hospital regarding the substances that the daughter may have
ingested. The People correctly concede that defendant’s attorney had
advised the police on September 12, 2007 that he had been retained by
defendant in connection with the investigation of the death of
defendant’s second husband and that she was not to be questioned
concerning that matter. We conclude, however, that the record
establishes that the police did not question defendant regarding her
second husband’s death, nor can it be said that the discussion
regarding the daughter’s condition would “inevitably elicit
incriminating responses” regarding the second husband’s death (People
v Cohen, 90 NY2d 632, 638).

     Defendant’s contention that the court erred in refusing to
suppress items seized from her home on September 14, 2007 because the
police had entered her home without her consent while waiting for the
search warrant is without merit. We note as a preliminary matter that
the purported suicide note was not seized by the police, but instead
was in their possession because defendant requested that a police
officer take the note from her younger daughter (see People v Carrier,
270 AD2d 800, 801, lv denied 95 NY2d 864). With respect to the items
seized from defendant’s home, we conclude that, because the police
initially entered the home with defendant’s consent in response to the
911 call regarding the daughter, they were entitled to remain there
while awaiting the warrant (see generally People v Lubbe, 58 AD3d 426,
426, lv denied 12 NY3d 818). In any event, the police had probable
cause to believe that defendant was responsible for the daughter’s
condition and were therefore justified in securing the residence to
prevent the removal or destruction of evidence (see People v Osorio,
34 AD3d 1271, 1272, lv denied 8 NY3d 883). The record establishes
that no search occurred before the warrant arrived and that the police
                                 -4-                           860
                                                         KA 09-00469

entered defendant’s home only to read the purported suicide note to
the person preparing the search warrant application and to provide
water to defendant’s dogs (see People v Pickney, 90 AD3d 1313, 1316).

     We reject defendant’s contention that the court erred in
permitting a police witness to testify that, when he questioned the
daughter at the hospital, she denied that she had attempted to kill
herself and denied that she had written a suicide note. We conclude
that the daughter’s statements were admissible under the excited
utterance exception to the hearsay rule because they were made shortly
after she became coherent, i.e., “before there [had] been time to
contrive and misrepresent” whether she had attempted to kill herself
and written the purported suicide note (People v Johnson, 1 NY3d 302,
306 [internal quotation marks omitted]). We also reject defendant’s
contention that the court erred in refusing to permit defendant’s
friend to testify with respect to a statement made by the daughter to
defendant’s friend inasmuch as that statement was too ambiguous to be
considered a statement against penal interest (see People v Simmons,
84 AD3d 1120, 1121, lv denied 18 NY3d 928). In any event, the
daughter testified at trial, and thus that exception to the hearsay
rule is inapplicable (see People v Ennis, 11 NY3d 403, 412, cert
denied ___ US ___, 129 S Ct 2383).

     Defendant failed to raise before the court her contention that
its rulings on certain evidentiary issues deprived her of the right to
present a defense, and she thus failed to preserve that contention for
our review (see People v Haddock, 79 AD3d 1148, 1149, lv denied 16
NY3d 798; see generally People v Gonzalez, 54 NY2d 729, 730). In any
event, we conclude that defendant’s contention is without merit.
Defendant also failed to preserve for our review her contention that
her right of confrontation was violated by the People’s failure to
call as witnesses the technicians who performed toxicology tests (see
People v Liner, 9 NY3d 856, 856-857, rearg denied 9 NY3d 941). In any
event, that contention also lacks merit. The toxicology analysis
performed by the technicians at independent laboratories involved
making a “contemporaneous record of objective facts” and the results
did not “directly link defendant to the crime[s],” but instead
concerned only the substances ingested by the victims (People v
Freycinet, 11 NY3d 38, 41). Thus, it is not likely that the content
of the reports was influenced by a pro-law-enforcement bias (see id.).
We therefore conclude that the toxicology evidence was not testimonial
in nature, and defendant’s right of confrontation was not implicated
by the People’s failure to call as witnesses the technicians who
performed the toxicology tests (see id. at 42; People v Meekins, 10
NY3d 136, 158-160, cert denied ___ US ___, 129 S Ct 2856; cf. People v
Rawlins, 10 NY3d 136, 157-158).

     We agree with defendant that the court erred in permitting a
police witness to testify in the People’s direct case that, during the
interview that took place on September 7, 2007, defendant invoked her
right to remain silent (see People v Capers, 94 AD3d 1475, 1476; see
generally People v Basora, 75 NY2d 992, 993). We nevertheless
conclude that the error is harmless beyond a reasonable doubt inasmuch
as there is no reasonable possibility that the error might have
                                 -5-                           860
                                                         KA 09-00469

contributed to defendant’s conviction (see Capers, 94 AD3d at 1476;
see generally People v Crimmins, 36 NY2d 230, 237).

     Defendant made only a general motion for a trial order of
dismissal at the close of the People’s case and failed in any event to
renew her motion to dismiss following the close of her case. She thus
failed to preserve for our review her contention that the
circumstantial evidence of the attempted murder of the daughter is
legally insufficient to support the conviction (see People v Roman, 85
AD3d 1630, 1630, lv denied 17 NY3d 821). In any event, we conclude
that defendant’s contention is without merit. The daughter denied
that she had intentionally ingested pharmaceutical drugs mixed with
alcohol. The daughter testified that, on the afternoon of September
13, 2007, defendant had prepared an alcoholic drink for her that
tasted “horrible,” and the daughter further testified that she
thereafter went to bed because she felt ill. It is undisputed that
the daughter did not leave her bedroom until she was taken by medical
personnel to the hospital the following morning. Further, the
daughter denied that she wrote a suicide note, and the evidence
establishes that the drafts of the purported suicide note were written
on September 11 and September 12, at times when the daughter was not
at home. We therefore conclude that the conviction of attempted
murder in the second degree is supported by legally sufficient
evidence inasmuch as a rational trier of fact could determine that the
elements of that crime were proven beyond a reasonable doubt (see
People v Rossey, 89 NY2d 970, 971-972; People v Bleakley, 69 NY2d 490,
495). Viewing the evidence in light of the elements of the crime as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
further conclude that the verdict is not against the weight of the
evidence with respect to the crime of attempted murder in the second
degree (see Bleakley, 69 NY2d at 495).

     We reject defendant’s contention that the evidence presented by
the People at trial changed the theory of the prosecution because it
established that the daughter ingested drugs during the early morning
hours of September 14, 2007. The indictment charged that defendant
attempted to kill the daughter “on or about” September 13, 2007 “by
poisoning her with a lethal combination of pharmaceutical substances
that were mixed with an alcoholic beverage.” We therefore conclude
that defendant received fair notice of the allegations against her and
that she was able to prepare a defense (see People v Dawson, 79 AD3d
1610, 1611, lv denied 16 NY3d 894).

     We also reject defendant’s contention that she was denied a fair
trial by prosecutorial misconduct (see People v Shaw, 66 AD3d 1417,
1418, lv denied 14 NY3d 773). We have reviewed defendant’s remaining
contentions in appeal No. 1 and conclude that none requires
modification or reversal of the judgment.

     Addressing defendant’s contentions in appeal No. 2, we agree with
defendant that the court erred in summarily denying her CPL article
440 motion. In support of her motion, defendant contended that her
indelible right to counsel attached on September 12, 2005, when the
police contacted her attorney regarding the investigation of her
                                 -6-                           860
                                                         KA 09-00469

second husband’s death, and thus that the police were prohibited from
questioning her without counsel on September 7, 2007 (see People v
Grice, 100 NY2d 318, 323; People v Arthur, 22 NY2d 325, 329).

     As a preliminary matter, we agree with defendant that the court
erred in determining that the issue regarding the alleged attachment
of defendant’s indelible right to counsel could have been raised in
the direct appeal. With respect to that issue, the record on the
direct appeal establishes that, on September 12, 2005, the police
requested that defendant provide her fingerprints as part of the
investigation of her second husband’s death. When defendant advised
the police that she had retained an attorney in connection with her
second husband’s estate, the police contacted the attorney with
respect to their request for defendant’s fingerprints. Defendant also
spoke with her attorney and thereafter agreed to cooperate with the
police. The right to counsel attaches in criminal matters only when
the attorney represents the defendant in the criminal matter, and not
solely in a civil matter (see People v Lewie, 17 NY3d 348, 361), and
the record in the direct appeal here does not provide a sufficient
basis for determining whether defendant’s attorney represented her
with respect to the investigation of her second husband’s death or
only with respect to his estate (cf. People v Foster, 72 AD3d 1652,
1653-1654, lv dismissed 15 NY3d 750; People v Arena, 69 AD3d 867, 868,
lv denied 14 NY3d 838). We therefore conclude that “the record [on
the direct appeal] falls short of establishing conclusively the merit
of defendant’s claim,” and thus that claim was properly raised by way
of a motion pursuant to CPL 440.10 (People v McLean, 15 NY3d 117,
121).

     We conclude that defendant’s submissions in support of her motion
raise a factual issue whether her indelible right to counsel attached
in September 2005, thus requiring a hearing (see generally People v
Frazier, 87 AD3d 1350, 1351). We therefore reverse the order in
appeal No. 2 and remit the matter to County Court to determine
defendant’s motion following a hearing on that issue (see generally
id.; People v Liggins, 56 AD3d 1265, 1266).

     Finally, contrary to defendant’s further contention in appeal No.
2, she was not deprived of meaningful representation based upon
defense counsel’s failure to seek suppression of the September 7, 2007
statement on the additional ground that her indelible right to counsel
had attached. That single error does not constitute a sufficiently
egregious error in an otherwise competent performance so as to deny
defendant a fair trial (see People v Cummings, 16 NY3d 784, 785, cert
denied ___ US___, 132 S Ct 203).




Entered:   October 5, 2012                      Frances E. Cafarell
                                                Clerk of the Court
