People v. Wlasiuk (90 A.D.3d 1405, 2011)

Mercure, A.PJ.

Defendant was convicted in 2003 of the crime of murder in the second degree in connection with the death of his wife (hereinafter the victim), whose body was found next to defendant’s submerged pick-up truck at the bottom of Guilford Lake. Defendant was present at the scene and, when the ensuing investigation both contradicted his version of the events and revealed evidence suggesting that he had killed the victim at their home and then staged a motor vehicle accident, police became suspicious. Upon defendant’s appeal from his judgment of conviction, this Court concluded that “the cumulative effect of a litany of errors deprived defendant of a fair trial” and, therefore, we reversed (People v Wlasiuk, 32 AD3d 674, 675 [2006], lv dismissed 7 NY3d 781 [2006]). Following remittal, County Court granted defendant’s motion for dismissal of the original indictment.

Thereafter, the People were given permission to resubmit the charge to a grand jury. Defendant was again indicted in 2007 and convicted of murder in the second degree at the close of a second jury trial. County Court denied his subsequent CPL 330.30 motion to set aside the verdict, and sentenced defendant to 25 years to life in prison. Defendant appeals and, because we conclude that he was denied the effective assistance of counsel at trial, we now reverse.

Initially, we reject defendant’s argument that the verdict was against the weight of the evidence. To support the verdict of intentional murder in the second degree, the People were required to prove that “[w]ith intent to cause the death of [the victim], [defendant] cause[d] [her] death” (Penal Law § 125.25 [1]). At trial, the People presented evidence that, on the night of the accident, defendant provided several differing accounts of the events leading to the victim’s death. At times, defendant indicated that he was driving his pick-up truck and had swerved to miss a deer, driven into the lake, and that the victim was still in the truck; at other points, he stated that the victim was driving and had swerved to miss a deer, and thát he was able to pull the victim out of the truck but not out of the water. In the days and months following the accident, defendant continued to give different accounts to investigators, stating that the victim had swerved, fishtailed and then driven into the lake at 50-60 miles per hour, that he and the victim had been sucked under the truck, and that the victim was not drinking before the accident; subsequently, he claimed that the victim had been drinking prior to the accident and had driven into the lake after making a k-turn while arguing with him, rather than swerving to avoid a deer.

None of these descriptions of the incident was consistent with the testimony of an accident investigator and reconstructionist. They opined that the truck — which was not significantly damaged — was traveling no more than 30 miles per hour when it entered the lake through the only direct opening to the water from the road in the vicinity, and observed that there were no skid or yaw marks suggesting that the vehicle swerved to avoid a deer, or indications that the vehicle made a k-turn before entering the lake. In addition, the doors of the truck were closed and locked, casting doubt on defendant’s statement that he had escaped through the passenger door. Witnesses nearby did not hear any sounds of a car accident or defendant screaming the victim’s name, as he claimed to have done, and defendant told a resident who attempted to rescue the victim after 911 was called not to go into the cold water because it was dangerous. Furthermore, first responders at the scene indicated that defendant’s hair was neat and dry, he was not hypothermic, did not seem to be cold, and appeared to be faking his shivering, despite his claims that he had been in the approximately 40-degree lake water for several minutes. When taken to the hospital approximately two hours after the accident, defendant’s body temperature was normal and he had no physical complaints, although he expressed his desire to have the victim’s organs donated and her body immediately cremated.

Defendant’s neck, however, was observed to be bruised and scratched, and the victim’s body bore injuries that were both inflicted before her death and consistent with having been smothered after a struggle, rather than sustained in a low-impact automobile accident. Moreover, burdock burrs were found in the victim’s hair and on her clothing, notwithstanding testimony that there were no burdocks near the portion of the lake surrounding the accident; in contrast, police recovered a damaged burdock bush at the couple’s residence that had strands of the victim’s hair on it. The victim’s hair and pager— which she always carried — were also found in the bed of the pick-up truck when it was extracted from the lake. Finally, there was evidence that defendant had recently taken out a life insurance policy on himself and the victim, stood to gain a death benefit from the state retirement system if the victim died, had been physically violent with the victim, isolated her from her family, threatened to kill her, and had expressed his opinion that it would be easy to kill someone and make it look as though the person had drowned in Guilford Lake. We note that defendant did present evidence that the truck was driving closer to 40-45 miles per hour, that there were burdocks in the area of the accident, that the victim’s injuries were consistent with an automobile accident, and that her death was caused by drowning. Nevertheless, £