         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1326
KA 10-02447
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHIAL E. FOSTER, DEFENDANT-APPELLANT.


LAWRENCE BROWN, BRIDGEPORT, FOR DEFENDANT-APPELLANT.

MICHIAL E. FOSTER, DEFENDANT-APPELLANT PRO SE.

CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (KRISTYNA S. MILLS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Jefferson County Court (Walter W.
Hafner, Jr., A.J.), rendered November 19, 2010. 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,
following a jury trial, of murder in the second degree (Penal Law §
125.25 [1]), arising from the murder of the mother of his children on
May 29, 1996. The remains of the victim’s body were not located for
more than 11 years, when they were observed by a passerby in a wooded
area. Defendant was thereafter convicted of the murder and, on
defendant’s appeal from that judgment, we reversed the judgment,
suppressed certain statements made to a jailhouse informant, and
granted a new trial (People v Foster, 72 AD3d 1652, lv dismissed 15
NY3d 750).

      We reject defendant’s contention in his main and pro se
supplemental briefs that the verdict from the second trial is against
the weight of the evidence. Defendant contends that evidence that the
victim was at the hospital at 11:20 a.m. to feed her son, who was born
prematurely, and testimony from the victim’s sister and brother-in-law
that they stopped at the victim’s house at approximately 11:30 a.m.,
where they spoke to defendant, establishes that it was “impossible”
for him to have killed the victim in the time frame alleged by the
prosecution. The witnesses further testified, however, that they were
unsure of the time of their arrival at the victim’s house, but that
they stopped “around lunchtime” following a medical appointment. When
they arrived, they found the 3½-year-old daughter of defendant and the
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                                                         KA 10-02447

victim (daughter) in defendant’s van, where she was crying. When they
entered the house, they observed that defendant was “sweating
profusely” and “breathing heavily.” The daughter, who was 17 years
old at the time of the second trial, testified that she had observed
defendant on top of her mother on the bed; that her mother stopped
moving; that defendant rolled her mother in a colorful blanket; and
that defendant placed the daughter in the van. The daughter testified
that the victim’s body, which defendant told her was “just a bunch of
trash,” was in the back of the van and that defendant drove to a
wooded area. He took the daughter out of the car, carried the victim
over his shoulder, and left the victim near water and cattails. A
jailhouse informant testified that defendant told him that the best
way to dispose of a body was to wrap it in a blanket and bury it in a
shallow grave in a marshy area. Viewing that evidence in light of the
elements of the crime as charged to the jury (see People v Danielson,
9 NY3d 342, 349), we conclude that an acquittal would have been
unreasonable, and thus that the verdict is not against the weight of
the evidence (see id. at 348; People v Bleakley, 69 NY2d 490, 495).

     Contrary to defendant’s contention in his main and pro se
supplemental briefs, he was not deprived of effective assistance of
counsel. With respect to defense counsel’s alleged failure to cross-
examine the daughter about discrepancies in her testimony in the first
and second trials, defendant failed to establish the “absence of a
strategic or other legitimate explanation for defense counsel’s
alleged shortcomings” (People v Smith, 93 AD3d 1345, 1346, lv denied
19 NY3d 967). The other challenges raised by defendant concerning
defense counsel’s representation also are without merit, and thus we
conclude that he received meaningful representation (see generally
People v Baldi, 54 NY2d 137, 147). We have reviewed the remaining
contentions in defendant’s pro se supplemental brief and conclude that
none requires reversal or modification.

     By failing to object to remarks by the prosecutor on summation to
defendant’s use of a blanket to wrap the victim’s body, defendant
failed to preserve for our review his contention in his main brief
that he was deprived of a fair trial by prosecutorial misconduct
arising from those remarks (see People v Rumph, 93 AD3d 1346, 1347, lv
denied 19 NY3d 967). In any event, the remarks of the prosecutor were
fair comment on the evidence (see People v McEathron, 86 AD3d 915,
916, lv denied 19 NY3d 975). Although there was no blanket found with
the remains of the victim’s body, there were fibers in that location
that were consistent with a woven material; the daughter testified
that defendant had wrapped her mother in a colorful blanket; another
witness testified that a colorful blanket owned by the victim was
missing from the victim’s home; and the jailhouse informant testified
that defendant told him that a body should be wrapped in a blanket and
disposed of in a shallow grave.

     We reject defendant’s further contention in his main brief that
County Court erred in admitting “implied hearsay,” i.e., testimony of
various witnesses concerning the events surrounding statements made by
the daughter regarding her mother’s disappearance, in the absence of
testimony concerning the statements themselves. We note that, at
                                 -3-                          1326
                                                         KA 10-02447

defendant’s first trial, statements made by the daughter regarding her
mother’s disappearance were admitted as excited utterances, while at
the second trial, over which a different judge presided, the
statements were held to be inadmissible. Where, as here, the court
did not abuse its discretion with respect to that evidentiary ruling
at the second trial, it will not be disturbed (see generally People v
Carroll, 95 NY2d 375, 385). We also reject defendant’s contention in
his main brief that the court abused its discretion in denying his
motion for a mistrial when a witness testified regarding a hearsay
statement made by the victim. “The court’s prompt curative
instruction minimized any prejudice caused by the improper testimony”
(People v Roman, 17 AD3d 1166, 1166, lv denied 5 NY3d 768).

     Finally, we reject defendant’s contention in his main brief that
the grand jury proceedings were rendered defective because evidence
presented to the grand jury was later suppressed or determined not to
be admissible. To the extent that defendant’s contention addresses
statements that he made to the jailhouse informant that were
subsequently suppressed, we conclude that the suppression “simply
diminish[ed] the quantum of proof against defendant but [did] not
negate any elements of the charged crime[]” (People v Gordon, 88 NY2d
92, 96; see People v Swamp, 84 NY2d 725, 732). Defendant failed to
preserve for our review his further contention that the indictment was
based upon incompetent evidence consisting of statements made by
defendant’s daughter that were not admitted at the second trial but
were admitted at the first trial (see CPL 470.05 [2]). In any event,
that contention is without merit. We conclude that the statements
were properly admitted at the first trial as an exception to the
hearsay rule, and thus they do not constitute “inherently incompetent
evidence” (Swamp, 84 NY2d at 732), despite the subsequent
determination that the statements were not admissible at the second
trial. Furthermore, the People adequately instructed the grand jury
that statements made by the daughter were being admitted based upon an
exception to the hearsay rule (see People v Perry, 199 AD2d 889, 893,
lv denied 83 NY2d 856).




Entered:   December 21, 2012                    Frances E. Cafarell
                                                Clerk of the Court
