                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 21, 2016                    106684
________________________________

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

JOSEPH RODRIGUEZ,
                    Appellant.
________________________________


Calendar Date:   November 19, 2015

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

                              __________


     Paul J. Connolly, Delmar, for appellant.

      D. Holley Carnright, District Attorney, Kingston (Jason P.
Weinstein of counsel), for respondent.

                              __________


McCarthy, J.

      Appeal from a judgment of the County Court of Ulster County
(Williams, J.), rendered February 10, 2014, upon a verdict
convicting defendant of the crime of murder in the second degree.

      After receiving a 911 call from defendant indicating that
his two-year-old niece (hereinafter the victim) was missing,
police arrived at defendant's residence to find his wife holding
the victim's body after it had been discovered in the yard
nearby. An autopsy performed the following day revealed that the
victim's death was caused by blunt force trauma to her head.
Thereafter, defendant was charged in a sealed indictment with one
count of murder in the second degree. Following a jury trial,
defendant was convicted as charged and, thereafter, sentenced to
                              -2-                 106684

a prison term of 25 years to life.   Defendant appeals, and we
affirm.

      Defendant's challenges to the legal sufficiency of the
evidence and the weight of the evidence in regard to the proof as
to his identity as the perpetrator is without merit given the
overwhelming evidence establishing his guilt. According to the
wife's testimony, on the morning in question, defendant assisted
the other children in the home in preparing for school and
getting on the school bus. According to her, defendant returned
to bed thereafter and informed her that the victim was still
sleeping. Therefore, at that point, the only three people in the
home were defendant, the wife and the victim.

      According to the wife, during that same morning, defendant
appeared to receive two telephone calls from their neighbor
regarding the fact that defendant had previously borrowed power
tools from him. These apparent conversations prompted defendant
to leave the bedroom on two separate occasions for short periods
of time, and defendant indicated, on both occasions, that he was
leaving the bedroom to return tools to the neighbor. The
neighbor testified that, on the same morning, he did receive a
voice mail message on his phone from defendant regarding the
tools. However, the neighbor further testified that he was not
at his home that morning and that he did not have any
conversation with defendant regarding the return of the tools.
When the neighbor returned home, he did not find that any of his
tools had been returned. The wife further explained that,
shortly after she got out of bed, she discovered that the victim
was not in her bedroom. After calling 911, they began to search
the area outside of the home. The wife testified that defendant
then discovered the victim's body nearby on top of a pile of
leaves. According to the wife, while she had rushed over, picked
up the victim and began to carry her away from that spot,
defendant, upon seeing the victim, had fallen to his knees
nearby.

      Police investigation thereafter uncovered various evidence
relevant to establishing the identity of the murderer. Evidence
introduced at trial established that the police found defendant's
work boots in the master bedroom of the home and that DNA
                              -3-                106684

analysis of a blood spot on those boots revealed that the blood
came from the victim.1 Further evidence established that a sink
in an upstairs bathroom had traces of blood on it and that there
were bloody paper towels in a garbage receptacle in that same
bathroom. The washing machine in the home contained a single
item of clothing. That item was a white, damp men's T-shirt that
smelled of bleach and had a red stain. The stain was later
determined to be blood, and that stain contained a DNA
contribution from the victim.

      Despite blood spatter analysis that indicated that the
victim had been killed in the yard outside of the home, the
police found a blood stain on the sill of a window in a guest
bedroom. An air conditioner had also apparently been removed
from the same window, as it was sitting on the floor nearby.
Expert testimony established that this blood was directly applied
to the window sill from some source.2

      In canvassing the bloody leaves at and around the location
where the victim's body was discovered, a set of car keys was
discovered underneath the leaves. The wife's testimony
established that those keys were the sole set of keys to
defendant's and her car and that she had not driven the car in
the two prior days. In a statement to police, defendant
indicated that he had driven the car the night before the
victim's death.

      The foregoing evidence reveals that defendant lied to his
wife about his whereabouts on the morning in question and that,
shortly after the victim's murder, two items of defendant's


    1
        Defendant contends that it is important to note that
further evidence was introduced that the victim had suffered a
bloody lip two weeks prior to her death.
    2
        Defendant contends that this evidence found in the guest
room goes to reasonable doubt as to whether an intruder murdered
the victim. The People contend that the same evidence is merely
indicative of the fact that defendant attempted to cover up his
crime by staging evidence of an intrusion.
                              -4-                106684

wardrobe were found with blood and the victim's DNA on them. One
of those items appeared to have been recently cleaned with
bleach. Additional evidence found within the house indicated
further efforts to clean up blood. Although defendant had not
interacted with the victim's body when it was discovered during
his search with his wife, car keys last in defendant's possession
were found underneath the bloody leaves surrounding the victim's
body. Considered as a whole, the evidence introduced at trial
overwhelmingly establishes that defendant was the perpetrator of
the victim's murder (see People v Miles, 15 AD3d 686, 687-688
[2005], lv denied 4 NY3d 855 [2005]). Accordingly, his arguments
that the evidence was legally insufficient and that the verdict
was against the weight of the evidence are without merit.

      Further, we reject defendant's contention that County
Court's denial of his motion for the People to disclose polygraph
data from an exam of his wife merits reversal. To the extent
that County Court explicitly agreed with defendant that the
question and answer portion of the polygraph was subject to
disclosure, this inquiry solely focuses on the physiological data
collected during the examination and any interpretations of it.
Assuming, without deciding, that a polygraph examination is a
"scientific test or experiment" subject to disclosure (CPL 240.20
[1] [c]; see People v Mondon, 129 Misc 2d 13, 15-16 [Sup Ct, NY
County 1985]), any error here in denying such disclosure is
harmless. Polygraph results are unquestionably inadmissible (see
People v Stevens, 95 AD3d 1451, 1454 n 2 [2012], lv denied 19
NY3d 1029 [2012]; People v Weber, 40 AD3d 1267, 1267 [2007], lv
denied 9 NY3d 927 [2007]; see generally People v Angelo, 88 NY2d
217, 222-223 [1996]). Further, defendant has not offered any
explanation for how such inadmissible materials could have
assisted him in either preparing for trial or litigation.
Accordingly, we perceive no reasonable basis to conclude that the
disclosure of such data could have affected the outcome of the
trial.

      Next, we also reject defendant's argument that his
statement to a child protective services (hereinafter CPS) worker
should have been suppressed. Defendant's contention that his
right to counsel was violated during such an interview depends on
whether the CPS worker was an agent of the police. "'[S]ocial
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workers are generally not agents of the police,' although they
may be considered agents under certain circumstances" (People v
Whitmore, 12 AD3d 845, 847 [2004], lvs denied 4 NY3d 769, 892
[2005], quoting People v Greene, 306 AD2d 639, 641 [2003], lv
denied 100 NY2d 594 [2003]). Here, although the CPS worker was
on a task force that included members of law enforcement, he
testified that he did not consult with any law enforcement
regarding his plans to interview defendant. Further, no law
enforcement were present at that interview. Accordingly, where
police had no involvement in the CPS worker's initiation or
execution of an interview with defendant, the CPS worker did not
act as a police agent (see People v Texidor, 71 AD3d 1190, 1191
[2010], lv denied 14 NY3d 893 [2010]; People v Whitmore, 12 AD3d
at 847; compare People v Slocum, 133 AD3d 972, 977-978 [2015];
People v Wilhelm, 34 AD3d 40, 46-49 [2006]; People v Greene, 306
AD2d at 640-641). Accordingly, defendant's right to counsel was
not implicated by the interview.

      We further conclude that none of the wife's testimony was
barred by the marital privilege. As is relevant to this inquiry,
testimony by a spouse with regard to observations and
communications that constitute mere "daily and ordinary
exchanges" between spouses are not subject to the protections of
the marital privilege (People v Melski, 10 NY2d 78, 80 [1961];
see People v Vargas, 60 AD3d 1236, 1239 [2009], lv denied 13 NY3d
750 [2009]). In any event, a defendant waives any protection
afforded by the marital privilege when he or she reveals the
substance of otherwise protected communications (see People v
Parker, 49 AD3d 974, 978 [2008], lv denied 10 NY3d 868 [2008];
see also People v Jacob, 117 AD3d 1079, 1080 [2014], lv denied 23
NY3d 1063 [2014]). None of the wife's testimony that related to
defendant's actions and statements on the day in question
concerned communications that "would not have been made but for
the absolute confidence in, and induced by, the marital
relationship" (People v Wilson, 64 NY2d 634, 636 [1984] [internal
quotation marks and citation omitted]). Further, defendant
essentially repeated the same facts as to those communications in
the multiple statements that he thereafter made to third parties
(see People v Parker, 49 AD3d at 978).
                              -6-                  106684

      Defendant's contentions regarding erroneous evidentiary
rulings and improper comments by the People during summation are
unpreserved, and we decline to invoke our interest of justice
jurisdiction to take corrective action. To the extent that
defendant claims that the failure to preserve such contentions
amounted to ineffective assistance of counsel, we disagree.
Although the jury could have possibly inferred from the evidence
that defendant had spent the evening before the murder working as
a pimp, defendant has not shown the absence of strategy of
counsel's choice not to draw attention to that bad act evidence
by objecting to its introduction; given that there was no
explicit evidence that defendant acted as a pimp, an objection
could have potentially increased the probability that the jury
would make such an inference (see generally People v Benevento,
91 NY2d 708, 712 [1998]). To the extent that counsel failed to
object to certain isolated improper comments during summation,
such deficiencies did not rise to the level of denying defendant
the effective assistance of counsel (People v Fisher, 89 AD3d
1135, 1139 [2011], lv denied 18 NY3d 883 [2012]; People v
Albanese, 38 AD3d 1015, 1019 [2007], lv denied 8 NY3d 981
[2007]). Defendant's remaining arguments have been examined and
are also without merit.

     Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
