State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 3, 2015 105435 

________________________________

THE PEOPLE OF THE STATE OF 

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

SCOTT CHAPLIN,

Appellant.

________________________________

Calendar Date: October 23, 2015

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

__________

Theresa M. Suozzi, Saratoga Springs, for appellant.

Thomas J. O'Connor, Special Prosecutor, Albany, for

respondent.

__________

McCarthy, J.P.

Appeal from a judgment of the County Court of Rensselaer

County (Ceresia, J.), rendered September 10, 2012, upon a verdict

convicting defendant of the crime of murder in the second degree.

On a morning in March 1994, the victim was found bludgeoned

to death at her place of employment, inside of a staff apartment

of a residence for the developmentally disabled. Interviews with

the victim's family members indicated that defendant, who was 17

years old at the time, had been sexually involved with the

victim. Shortly thereafter, defendant made various statements to

the police denying any involvement in the homicide. In 2004, DNA

analysis of evidence obtained from the crime scene revealed that

saliva left on a paper towel roll matched defendant's DNA

profile. In April 2011, additional DNA analysis revealed that
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defendant could not be excluded as a contributor to the DNA

obtained from a piece of paper towel that had been wrapped around

the bedroom doorknob of the staff apartment. In May 2011, a

witness was located who implicated defendant and a codefendant in

the victim's murder and robbery. After grand jury indictment and

then a jury trial, defendant was convicted of murder in the

second degree and sentenced to 25 years to life in prison. 

Defendant appeals, and we affirm.

Defendant's contention that his constitutional right to a

speedy trial was violated is without merit. "In determining

whether there is an undue delay, the trial court must consider

'(1) the extent of the delay; (2) the reason for the delay; (3)

the nature of the underlying charge; (4) whether or not there has

been an extended period of pretrial incarceration; and (5)

whether or not there is any indication that the defense has been

impaired by reason of the delay'" (People v Montague, 130 AD3d

1100, 1101 [2015], quoting People v Taranovich, 37 NY2d 442, 445

[1975]). Where, as here, the delay is extraordinary, "close

scrutiny of the other factors, especially the question of why the

delay occurred," is required (People v Romeo, 12 NY3d 51, 56

[2009], cert denied 558 US 817 [2009]).

The People introduced evidence indicating that DNA

technology in 1994 would have required the destruction of the two

samples of biological material that had been collected. Further

evidence established that technology at the time that the samples

were tested – in 2004 and 2011 – did not require such

destruction. In addition to this physical evidence becoming

probative, a witness came forward in May 2011 implicating

defendant in the murder. Such evidence demonstrated a good faith

basis for the delay in proceeding with the prosecution (see

People v Decker, 13 NY3d 12, 16 [2009]; People v Gaston, 104 AD3d

1206, 1206-1207 [2013], lv denied 22 NY3d 1156 [2014]).

Turning to the remaining factors, the charge of murder in

the second degree is "inarguably a very serious offense" (People

v Decker, 13 NY3d at 15). Further, defendant was never

incarcerated during the 17-year delay (see People v Swan, 90 AD3d

1146, 1147 [2011]). In addition, defendant's generic claim that

witnesses may have moved and that their recall of events is no
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longer as strong as it once was is too speculative to carry

significant weight in the analysis (see People v King, 62 AD3d

1162, 1163 [2009]). Although defendant faced a substantial

delay, upon considering these factors, we find that his

constitutional right to a speedy trial was not violated (see

People v Vernace, 96 NY2d 886, 888 [2001]; People v Tuper, 118

AD3d 1144, 1146 [2014], lv denied 25 NY3d 954 [2015]; People v

Chatt, 77 AD3d 1285, 1285 [2010], lvs denied 17 NY3d 793, 800

[2011]).

The introduction of certain statements made by defendant to

law enforcement officials did not violate his constitutional

rights. Miranda safeguards "are not triggered unless a suspect

is subject to 'custodial interrogation'" (People v Berg, 92 NY2d

701, 704 [1999], quoting Miranda v Arizona, 384 US 436, 444

[1966]). "The standard for assessing a suspect's custodial

status is whether a reasonable person innocent of any wrongdoing

would have believed that he or she was not free to leave" (People

v Paulman, 5 NY3d 122, 129 [2005] [citations omitted]). This

inquiry is informed by many factors, including "'the location,

length and atmosphere of the questioning, whether police

significantly restricted defendant's freedom of action, the

degree of defendant's cooperation, and whether the questioning

was accusatory or investigatory'" (People v Henry, 114 AD3d 1025,

1026 [2014], lv dismissed 22 NY3d 1199 [2014], quoting People v

Pagan, 97 AD3d 963, 966 [2012], lv denied 20 NY3d 934 [2012]). 

Defendant's first interview with police took place at his

home, in the presence of defendant's father, and it lasted

approximately 20 to 30 minutes. The evidence indicates that

defendant's movements were not restrained and that he could have

ended the interview at any time. Defendant's second interview

took place over a 90-minute period after defendant and his father

spontaneously and voluntarily appeared at a police station. 

According to an interviewing police officer, defendant informed

him that he wanted to "clear the air." Defendant's third and

final interview – which included a polygraph examination and

occurred in 2011 – took place upon defendant's request. Further

uncontested evidence established that defense counsel conducted

substantial negotiations regarding the conditions upon which

defendant would participate in such an interview. The interview
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took place over 31⁄2 hours, after which defendant left. 

Considering the totality of circumstances surrounding each of the

aforementioned interviews, none of defendant's statements was

made while he was in custody (see People v Mercado, 113 AD3d 930,

931-932 [2014], lv denied 23 NY3d 1040 [2014]; People v Bennett,

179 AD2d 837, 838-839 [1992]). Relatedly, defendant had no right

to have counsel present during the third interview, given that it

was noncustodial and no criminal action against defendant had

been commenced (see People v Lopez, 16 NY3d 375, 380 [2011]). 

Accordingly, defendant's suppression arguments are without merit.

Defendant's conviction was based on legally sufficient

evidence, and it was not against the weight of the evidence. As

relevant here, to convict defendant of murder in the second

degree on a felony murder theory, the People were required to

prove that defendant committed or attempted to commit a robbery

"and, in the course of and in furtherance of such crime or of

immediate flight therefrom, he, or another participant, if there

[were] any, cause[d] the death of" the victim (Penal Law § 125.25

[3]; see People v Henderson, 25 NY3d 534, 539 [2015]; People v

Jackson, 100 AD3d 1258, 1259 [2012], lv denied 21 NY3d 1005

[2013]). Proof of defendant's intent to murder the victim was

not necessary; rather, the People were required to show that

defendant specifically intended to commit the predicate felony

(see People v Stokes, 88 NY2d 618, 623 [1996]). To establish

that defendant committed a robbery, the People were required to

show that defendant forcibly stole property from the victim for

the purpose of retaining the same (see Penal Law § 160.00). 

Notably, intent to commit a robbery may be inferred from

defendant's conduct and the surrounding circumstances (see People

v Gordon, 23 NY3d 643, 650 [2014]).

Proof implicating defendant included the introduction of

DNA evidence relating to two samples of DNA, which, when

considered together, strongly indicated that defendant had been

at the scene of the murder on the night in question. This DNA

evidence, along with other overwhelming evidence confirming that

defendant had a romantic relationship with the victim, could be

considered evidence of defendant's consciousness of guilt, as it

utterly contradicted defendant's prior repeated claims that he

had not had any relationship with the victim. Testimony also
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indicated that the victim generally carried a purse with large

sums of cash and that such purse was not with the victim after

her death. An individual who was defendant's neighbor and friend

in 1994 testified that defendant explained to him, shortly after

the victim's death, that the police would not find the victim's

purse and that witnesses were incorrect in their belief that a

certain car had been at the scene of the crime. That same

witness explained that defendant, prior to the victim's death,

had also told him that the victim had a significant amount of

money. 

Contrary to defendant's contention, the People were not

required to prove the value of the contents of the victim's purse

(see People v Acevedo, 40 NY2d 701, 707 [1976]). The

aforementioned evidence was sufficient to support defendant's

conviction of murder in the second degree on a felony murder

theory (see People v Ramos, 129 AD3d 1205, 1206-1207 [2015], lv

denied 26 NY3d 971 [2015]; People v Griffin, 122 AD3d 1068, 1069-

1070 [2014], lv denied 25 NY3d 1164 [2015]).1 Further, deferring

to the jury's resolution of credibility issues, the conviction

was not against the weight of the evidence (see People v

Callicut, 101 AD3d 1256, 1257-1259 [2012], lvs denied 20 NY3d

1096, 1097 [2013]; People v Jackson, 100 AD3d at 1259-1261).

Defendant's contention that the People should not have

elicited testimony that defendant committed the bad acts of

buying and smoking marihuana is unpreserved (see People v Cox,

129 AD3d 1210, 1214 [2015], lv denied 26 NY3d 966 [2015]) and

does not warrant any corrective action in the interest of

justice. Contrary to certain of defendant's contentions

regarding the best evidence rule, defendant's written statements

to law enforcement were not introduced as photographs or

photocopies. The writings that were introduced were carbon

copies, which are originals for the purposes of the best evidence

rule (see People v Sims, 127 AD2d 712, 713 [1987]; People v Kolp,

49 AD2d 139, 141 [1975]). Defendant's remaining argument

regarding the best evidence rule is also without merit, as the

1 Defendant does not contest the jury's conclusion that the

predicate murder occurred. 
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writing that it regards was not entered into evidence.

Defendant's assertions that Brady materials were improperly

withheld from him is without support in the record, and his

speculation that such evidence exists is insufficient to

establish a Brady violation (see People v Parkinson, 268 AD2d

792, 793 [2000], lv denied 95 NY2d 801 [2000]). In addition,

given that defendant supplied the language that County Court used

in its circumstantial evidence charge to the jury, his current

contention that such a charge was improper is unpreserved (see

People v Sabines, 121 AD3d 1409, 1411-1412 [2014], lv denied 25

NY3d 1171 [2015]; People v Davis, 105 AD3d 1095, 1097 [2013], lv

denied 21 NY3d 1003 [2013]). In any event and contrary to

defendant's contention, County Court was not required to use the

phrase "moral certainty" in its circumstantial evidence charge

(People v Sanchez, 61 NY2d 1022, 1024 [1984]; see People v

Gonzalez, 54 NY2d 729, 730 [1981]). To the extent not already

discussed herein, defendant's remaining contentions are without

merit. 

Egan Jr., Lynch and Devine, JJ., concur.

ORDERED that the judgment is affirmed. 

ENTER:

Robert D. Mayberger

Clerk of the Court