SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1082 

KA 10-01365 

PRESENT: SMITH, J.P., CENTRA, VALENTINO, WHALEN, AND DEJOSEPH, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

ROBERT E. JOHNSON, DEFENDANT-APPELLANT. 

 

PATRICIA M. MCGRATH, LOCKPORT, FOR DEFENDANT-APPELLANT. 

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Niagara County Court (Matthew J.

Murphy, III, J.), rendered January 26, 2010. The judgment convicted

defendant, upon a jury verdict, of murder in the second degree and

criminal possession of a weapon in the fourth degree (three counts). 

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]) and three counts of criminal possession of a weapon in the fourth

degree (§ 265.01 [2]), stemming from the brutal murder of his wife at

their home. When the police arrived, they found the victim lying face

down on the kitchen floor in a pool of blood. A medical examiner

testified that the victim sustained 22 stab wounds and 27 cutting

wounds. The evidence established that at least three different knives

were used, and that two knives with broken handles were left

protruding from the victim’s body. 

Contrary to defendant’s contention, County Court properly refused

to suppress statements he made at the crime scene because he was not

in custody or subject to interrogation at that time (see People v

Paulman, 11 AD3d 878, 878-879, affd 5 NY3d 122; People v Kaufman, 288

AD2d 895, 896, lv denied 97 NY2d 684). The court also properly

refused to suppress statements defendant made at the police station

that evening. After about 10 to 15 minutes of questioning at his

home, defendant agreed to accompany the police to the station for

further questioning. Defendant was never restrained in any way, he

was free to use the restroom, he was offered food and drink, and he

was told that he was free to leave. After approximately three hours,

the interview ended when defendant indicated that he wanted to leave. 

Under the circumstances, we agree with the court that defendant was

not in custody while at the station (see People v Petrovich, 202 AD2d
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KA 10-01365 

523, 523-524, affd 87 NY2d 961; People v Murphy, 43 AD3d 1276, 1276-

1277, lv denied 9 NY3d 1008; People v Dozier, 32 AD3d 1346, 1346, lv

dismissed 8 NY3d 880). 

The court also properly refused to suppress the swab of the blood

stain taken from defendant’s torso. Defendant agreed to give his

clothing to the police and, when he removed his shirt, an officer

noticed a reddish brown stain on defendant’s chest that appeared to be

blood. When asked what it was, defendant responded that it was a

bruise. The officer swabbed the area, which later tested positive for

blood and matched the victim’s DNA. Where, as here, the police did

not obtain a warrant for the seizure of the blood evidence, “the

police had to satisfy two requirements in order to justify the action

taken. First, the police had to have reasonable cause to believe the

[blood stain] constituted evidence, or tended to demonstrate that an

offense had been committed, or, that a particular person participated

in the commission of an offense . . . Second, there had to have been

an exigent circumstance of sufficient magnitude to justify immediate

seizure without resort to a warrant” (People v Thomas, 188 AD2d 569,

571, lv denied 81 NY2d 1021; see People v Loomis, 17 AD3d 1019, 1020-

1021, lv denied 5 NY3d 830). We agree with the court that the police

had reasonable cause to believe that the blood stain on defendant’s

chest constituted evidence, and that the seizure was appropriate

because it could have been easily destroyed by defendant (see Cupp v

Murphy, 412 US 291, 296; People v Berzups, 49 NY2d 417, 427).

Contrary to defendant’s contention, the evidence is legally

sufficient to support the conviction (see generally People v Bleakley,

69 NY2d 490, 495). Defendant further contends that the court erred in

allowing a witness to testify concerning defendant’s prior bad act,

i.e., his request to have a third-party “cut up his wife.” Even

assuming, arguendo, that the court erred in allowing that testimony,

we conclude that the error is harmless (see generally People v

Crimmins, 36 NY2d 230, 241-242). The circumstantial evidence of

defendant’s guilt is overwhelming, and there is no significant

probability that defendant would have been acquitted but for the error

(see People v Guarino, 298 AD2d 937, 937, lv denied 98 NY2d 768; see

also People v Tyes, 30 AD3d 1045, 1046, lv denied 7 NY3d 795).

Defendant failed to preserve for our review his contention that

he was denied a fair trial by prosecutorial misconduct on summation

(see People v Williams, 128 AD3d 1522, 1524, lv denied ___ NY3d ___

[July 13, 2015]) and, in any event, the prosecutor’s remarks were

either fair response to defense counsel’s summation (see People v

Melendez, 11 AD3d 983, 984, lv denied 4 NY3d 888), or fair comment on

the evidence (see People v Graham, 125 AD3d 1496, 1498). Defendant’s

belated motion for a mistrial is insufficient to preserve for our

review his contention that a detective improperly commented on

defendant’s right to remain silent (see People v Woods, 284 AD2d 995,

996, lv denied 96 NY2d 926; People v Okon, 184 AD2d 664, 664; see also

People v Harden, 26 AD3d 887, 888, lv denied 6 NY3d 834). In any

event, although we agree with defendant that the People’s use of

defendant’s selective silence during the interrogation that occurred
-3- 1082 

KA 10-01365 

the day after the murder was improper (see People v Williams, 25 NY3d

185, 193), we agree with the People that the error is harmless (see

generally id. at 194).

Defendant’s contention that the court erred in denying his CPL

440 motion is not properly before us inasmuch as defendant did not

obtain leave to appeal from this Court (see CPL 460.15; People v

Jacobs, 188 AD2d 1032, 1032, lv denied 81 NY2d 887). We have

considered defendant’s remaining contentions and conclude that they

are without merit.

Entered: November 20, 2015 Frances E. Cafarell

Clerk of the Court