People v Strub, 2024 NY Slip Op 02942 [227 AD3d 1113]

May 29, 2024

Appellate Division, Second Department

[*1]

The People of the State of New York, Respondent,

v

Steven A. Strub, Appellant.

Steven A. Feldman, Manhasset, NY, for appellant.

Raymond A. Tierney, District Attorney, Riverhead, NY (Grazia DiVincenzo and Marion Tang of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Suffolk County (John B. Collins, J.), rendered December 12, 2018, convicting him of manslaughter in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress his statements to law enforcement officials.

Ordered that the judgment is affirmed.

The defendant was convicted of manslaughter in the second degree in connection with the death of his wife based upon, among other things, statements he made to the police while in custody, DNA evidence, and cell site data.

Viewing the evidence in the light most favorable to the prosecution ( see People v Contes , 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15 [5]; People v Danielson , 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v Mateo , 2 NY3d 383 [2004]; People v Bleakley , 69 NY2d 490 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v Romero , 7 NY3d 633 [2006]).

Contrary to the defendant’s contention, the County Court properly denied that branch of the defendant’s omnibus motion which was to suppress his statements to law enforcement officials based on the defendant’s symptoms of withdrawal. A confession will only be rendered inadmissible due to withdrawal where the symptoms have “risen to the degree of mania” ( People v Adams , 26 NY2d 129, 137 [1970]) or “resulted in the sudden loss of [the defendant’s] capacity to understand either the nature of his legal rights or the consequences that would follow from their waiver” ( People v Husbands , 171 AD2d 756, 756 [1991]; see People v Smith , 223 AD3d 500 [2024]; People v Frejomil , 184 AD2d 524, 525 [1992]). At the suppression hearing, the People demonstrated beyond a reasonable doubt that the defendant’s statements were voluntary and that he knowingly, intelligently, and voluntarily waived his Miranda rights prior to making the statements ( see Miranda v Arizona , [*2] 384 US 436, 444 [1966]; People v McManus , 219 AD3d 636 , 636 [2023]). A review of the totality of the circumstances demonstrates that the defendant’s statements were voluntarily made, and the record is devoid of evidence establishing that the defendant was experiencing withdrawal symptoms that rose to the degree of mania or impaired his capacity to understand his legal rights ( see People v Lewis , 165 AD3d 979 , 979 [2018]; People v Frejomil , 184 AD2d at 524).

The County Court also properly denied that branch of the defendant’s omnibus motion which was to suppress his statements to law enforcement officials as the fruit of an unlawful arrest. Independent of any outstanding out-of-state warrants the defendant may have had, the People established that the arresting officers had probable cause to arrest the defendant for the instant crime ( see People v Lawrence , 211 AD3d 1039 , 1040 [2022]; People v Rhames , 196 AD3d 510 , 512 [2021]).

The defendant’s contention that the interrogating officer’s denial of the defendant’s request to call his mother violated his right to counsel is only partially preserved for appellate review ( see CPL 470.05 [2]; People v Noble , 211 AD3d 970 , 971 [2022]). In any event, the defendant’s contention is without merit. A defendant’s “request to speak with his mother is not the legal equivalent of a request to exercise the constitutionally protected right to an attorney’s advice and counsel” ( People v Fuschino , 59 NY2d 91, 100 [1983]). Here, the record contains no indication that the defendant intended to call his mother for the purpose of retaining counsel. To the extent that the interrogating officer violated CPL 140.20 (7), a statutory violation does not implicate the exclusionary rule, and therefore does not require the statement’s suppression ( see People v Patterson , 78 NY2d 711, 714 [1991]; People v Harris , 48 NY2d 208, 216 [1979]).

The defendant’s challenge to the County Court’s jury instructions regarding witness credibility and inconsistent statements is only partially preserved for appellate review ( see People v Santiago , 52 NY2d 865, 866 [1981]; People v Cruz , 137 AD3d 1158 , 1159 [2016]). In any event, the defendant’s contention is without merit because the “ ’court’s charge, taken as a whole, conveyed to the jury the correct standard’ ” ( People v Medina , 18 NY3d 98 , 104 [2011] [internal quotation marks omitted], quoting People v Drake , 7 NY3d 28 , 32 [2006]; see People v Whitney , 117 AD3d 762 [2014]).

Contrary to the defendant’s contention, his presumption of innocence was not impaired by a witness’s testimony regarding the defendant’s incarceration status. “Evidence indicating that a defendant was incarcerated pending trial may impair a defendant’s presumption of innocence” ( People v Zelaya , 170 AD3d 1206 , 1207 [2019]). However, the subject witness’s testimony here was “temporary and brief” and “served a legitimate State interest” ( People v Jenkins , 88 NY2d 948, 951 [1996]). The witness testified only as to one telephone call the defendant made while in custody the day after his arrest, which did not imply that the defendant was otherwise incarcerated pending trial ( see People v Fabregas , 130 AD3d 939 , 940 [2015]). Under these circumstances, the County Court was not required, sua sponte, to issue a curative instruction ( see People v Zelaya , 170 AD3d at 1207).

The defendant’s challenge to the interrogating officer’s use of writings between the defendant and his wife, and his related challenge to the introduction of the recorded interrogation to the jury, is unpreserved for appellate review ( see CPL 470.05 [2]; People v Noble , 211 AD3d at 971). In any event, the defendant’s contentions are without merit because he left the subject writing “in plain view” ( People v Thomas , 288 AD2d 405, 406 [2001]) and because the marital privilege was “never designed to forbid inquiry into the personal wrongs committed by one spouse against the other” ( Poppe v Poppe , 3 NY2d 312, 315 [1957]).

The parties’ remaining contentions are without merit. Brathwaite Nelson, J.P., Christopher, Genovesi and Ventura, JJ., concur..