People v. Walker, 274 A.D.2d 600 (N.Y. App. Div. 2000). · Go Syfert
People v. Walker, 274 A.D.2d 600 (N.Y. App. Div. 2000). Cases Citing This Book View Copy Cite
16 citation events (16 in the last 25 years) across 1 distinct court.
Strongest positive: People v. Hilton (nyappdiv, 2018-11-21)
Top citers, strongest first. 13 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Hilton
N.Y. App. Div. · 2018 · confidence medium
Defendant's argument that Supreme Court's Molineux charge was erroneous is likewise unpreserved given that he did not object to the charge as given ( see People v Gomez , 138 AD3d 1017, 1018 [2016], lv denied 27 NY3d 1151 [2016]; People v Walker , 274 AD2d 600, 601 [2000], lv denied 95 NY2d 908 [2000]).
discussed Cited as authority (rule) People v. Jones
N.Y. App. Div. · 2016 · confidence medium
Since the defendant’s contentions with respect to the alleged errors in charging the jury are without merit, the failure of trial counsel to request a circumstantial evidence charge, or object to the charge given, cannot be said to have constituted ineffective assistance of counsel (see People v Fabers, 133 AD3d 616, 617 [2015]; People v Torres, 108 AD3d 474, 475 [2013]; People v Geddes, 49 AD3d 1255, 1256-1257 [2008]; People v Walker, 274 AD2d 600, 602 [2000]).
discussed Cited as authority (rule) People v. Jones
N.Y. App. Div. · 2016 · confidence medium
Since the defendant’s contentions with respect to the alleged errors in charging the jury are without merit, the failure of trial counsel to request a circumstantial evidence charge, or object to the charge given, cannot be said to have constituted ineffective assistance of counsel (see People v Fabers, 133 AD3d 616, 617 [2015]; People v Torres, 108 AD3d 474, 475 [2013]; People v Geddes, 49 AD3d 1255, 1256-1257 [2008]; People v Walker, 274 AD2d 600, 602 [2000]).
discussed Cited as authority (rule) People v. Bjork
N.Y. App. Div. · 2013 · confidence medium
Here, there was no “substantial similarity” (People v Cohen, 50 NY2d 908, 910 [1980]) and, given the speculative nature of this test, defendant’s objection to the admission of this testimony should have been sustained (see People v Walker, 274 AD2d 600, 602 [2000]; compare People v Estrada, 109 AD2d 977, 978-979 [1985]).
discussed Cited as authority (rule) People v. Bjork
N.Y. App. Div. · 2013 · confidence medium
Here, there was no “substantial similarity” (People v Cohen, 50 NY2d 908, 910 [1980]) and, given the speculative nature of this test, defendant’s objection to the admission of this testimony should have been sustained (see People v Walker, 274 AD2d 600, 602 [2000]; compare People v Estrada, 109 AD2d 977, 978-979 [1985]).
discussed Cited as authority (rule) People v. Mercereau
N.Y. App. Div. · 2011 · confidence medium
As such, the Supreme Court providently exercised its discretion in determining that the probative value of the demonstrative evidence did not outweigh its potential for prejudice (id. at 704-705; see People v Caballero, 34 AD3d at 691-692; People v Walker, 274 AD2d 600, 602 [2000]; People v Moolenaar, 262 AD2d 60 [1999]; People v Vega, 240 AD2d 347, 348 [1997]; see generally People v Estrada, 109 AD2d 977, 978-979 [1985]).
discussed Cited as authority (rule) People v. Rabideau
N.Y. App. Div. · 2011 · confidence medium
Defendant’s challenge to the jury’s charge has not been preserved for appellate review, and we decline to exercise our interest of justice jurisdiction (see CPL 470.15 [6] [a]; People v Walker, 274 AD2d 600, 601 [2000], lv denied 95 NY2d 908 [2000]; compare People v Greene, 306 AD2d 639, 643 [2003], lv denied 100 NY2d 594 [2003]).
discussed Cited as authority (rule) People v. Ballard
N.Y. App. Div. · 2007 · confidence medium
Taken together, those charges were sufficient to inform the jury of the need to scrutinize Young’s testimony (see People v Inniss, 83 NY2d 653, 658-659 [1994]; People v Walker, 274 AD2d 600, 601 [2000], lv denied 95 NY2d 908 [2000]).
discussed Cited as authority (rule) People v. Wallace
N.Y. App. Div. · 2004 · confidence medium
In any event, since the People’s direct case did not rest entirely upon circumstantial evidence, such charge was not required (see People v Walker, 274 AD2d 600, 601 [2000], lv denied 95 NY2d 908 [2000]; People v Struss, 228 AD2d 711, 714 [1996], lv denied 89 NY2d 867 [1996]).
discussed Cited as authority (rule) People v. Porter
N.Y. App. Div. · 2003 · confidence medium
Turning to defendant’s challenges to the jury instructions, his argument concerning the reasonable doubt instruction was not preserved for appellate review inasmuch as no objection to that instruction occurred at trial (see People v Walker, 274 AD2d 600, 601 [2000], lv denied 95 NY2d 908 [2000]).
discussed Cited as authority (rule) People v. Smith
N.Y. App. Div. · 2001 · confidence medium
Finally, inasmuch as the People’s case consisted of both circumstantial and direct evidence, County Court properly denied defendant’s request for a circumstantial evidence charge (see, People v Walker, 274 AD2d 600, 601, lv denied 95 NY2d 908; see also, People v Durham, 248 AD2d 820, 821 , lv denied 91 NY2d 972 ).
discussed Cited "see, e.g." People v. Pagan
N.Y. App. Div. · 2012 · signal: see also · confidence medium
While such instructions are required when all of the elements of the charges against a defendant depend entirely on circumstantial evidence, here all of the charges were also supported by direct evidence, including Hart’s accomplice testimony (see People v Saxton, 75 AD3d 755, 758 [2010], lv denied 15 NY3d 924 [2010]; People v Rosica, 199 AD2d 773, 774 [1993], lv denied 83 NY2d 876 [1994]; People v McDermott, 185 AD2d 384, 386 [1992], lv denied 80 NY2d 906 [1992]; see also People v Walker, 274 AD2d 600, 601 [2000], lv denied 95 NY2d 908 [2000]).
discussed Cited "see, e.g." People v. Pagan
N.Y. App. Div. · 2012 · signal: see also · confidence medium
While such instructions are required when all of the elements of the charges against a defendant depend entirely on circumstantial evidence, here all of the charges were also supported by direct evidence, including Hart’s accomplice testimony (see People v Saxton, 75 AD3d 755, 758 [2010], lv denied 15 NY3d 924 [2010]; People v Rosica, 199 AD2d 773, 774 [1993], lv denied 83 NY2d 876 [1994]; People v McDermott, 185 AD2d 384, 386 [1992], lv denied 80 NY2d 906 [1992]; see also People v Walker, 274 AD2d 600, 601 [2000], lv denied 95 NY2d 908 [2000]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Richard Walker, Sr.
Appellate Division of the Supreme Court of the State of New York.
Jul 6, 2000.
274 A.D.2d 600
2000 N.Y. App. Div. LEXIS 7602
Mugglin.
Cited by 15 opinions  |  Published
—Mugglin, J.

Appeal from a judgment of the County Court of Ulster County (Czajka, J.), rendered February 28, 1997, upon a verdict convicting defendant of the crimes of murder in the second degree and criminal solicitation in the fourth degree (three counts).

Defendant was indicted for murder in the second degree after his wife, Trudi Eschenbecker,* was found drowned in the Hudson River on May 15, 1996. Defendant was also charged with four counts of criminal solicitation in the fourth degree pertaining to requests that he had made of people to assault Eschenbecker by throwing battery acid in her face, break the legs of a former boyfriend of hers and to burn down a house defendant owned. The record reflects that the relationship between Eschenbecker and defendant had deteriorated as she had joined a dating service and gone on vacation to Florida with another man shortly before her death. The key prosecution witness was David Gorsline, a nephew of defendant. Gorsline was given transactional immunity and was ruled to be an accomplice to the murder. He was aware of the difficulties that existed between defendant and Eschenbecker and was an eyewitness to her murder and to two of the solicitation charges. The jury convicted defendant of murder in the second degree and three of the four criminal solicitation charges. County Court thereafter sentenced defendant to a prison term of 25 years to life for the murder conviction and three one-year terms for the three criminal solicitation in the fourth degree convictions, all sentences to be served consecutively to each other. Defendant now appeals.

Principal among the many arguments advanced by defen[*601] dant for reversal of these convictions and a new trial is that County Court erred in three specific areas while charging the jury. If proper objection was not made by defense counsel rendering these errors unpreserved for appellate review, defendant contends that reversal is required because of the ineffective assistance of trial counsel.

Defendant argues that County Court erred by charging that reasonable doubt is a doubt for which some reason can be given, that further error occurred by County Court’s failure to give an interested witness charge, and that the court erred by failing to charge the jury regarding circumstantial evidence. Defendant made no objection to the reasonable doubt charge as given and did not request an interested witness charge, thereby rendering these assigned errors unpreserved for judicial review (see, People v McKenzie, 67 NY2d 695, 697; People v Gamez, 241 AD2d 693, lv denied 91 NY2d 892; People v Montroy, 225 AD2d 913). Nor do we find any reason to reverse on these grounds in the interest of justice, since we conclude that County Court’s charge with respect to reasonable doubt, considering the charge as a whole, did not suggest that the jurors were obligated to express a reason for any reasonable doubt (see, People v Antommarchi, 80 NY2d 247, 251-252; People v Martin, 206 AD2d 591, 592), and the appropriate standard of proof was conveyed to the jury (see, People v Matthews, 221 AD2d 802, lv denied 88 NY2d 850; People v Gutkaiss, 206 AD2d 628, 631-632, lv denied 84 NY2d 936). In fact, the court specifically instructed the jury that “there is no obligation on the part of a juror to articulate the basis of his or her doubt.” Likewise, County Court’s general instructions to the jury concerning how it was to judge the credibility of witnesses, coupled with the charge concerning accomplice testimony that was given with respect to Gorsline’s testimony, required the jury to consider his testimony in a more painstaking manner and required a greater degree of juror satisfaction with the testimony than would the lesser standards affecting credibility found in the interested witness charge. Thus, we find no merit to this argument.

County Court’s refusal to charge circumstantial evidence, since it was requested by defendant, is preserved for our review (see, People v Leisner, 73 NY2d 140, 147; People v Le Mieux, 51 NY2d 981, 982). However, this argument is equally unpersuasive since where, as here, the People’s proof consists of both circumstantial and direct evidence, the court is not required to give a circumstantial evidence charge (see, People v Daddona, 81 NY2d 990, 992).

[*602] Having found that these alleged errors, whether preserved for appellate review or not, do not constitute grounds for reversal, it follows that defendant’s claim of ineffective assistance of counsel is equally unavailing. Moreover, our review of the record reveals that defendant received meaningful representation throughout the course of this prosecution (see, People v Baldi, 54 NY2d 137).

The balance of defendant’s arguments merit little discussion. On this record, we find that County Court reached an appropriate Sandoval compromise; that no reversible error occurred because of a question asked by the prosecutor since a prompt objection was sustained without an answer having been given; that County Court properly denied defendant’s motion at the close of the People’s case to dismiss since the record contained “competent evidence which, if accepted as true, would establish every element of an offense charged and a defendant’s commission thereof’ (CPL 70.10 [1]; see, People v Miller, 210 AD2d 724, affd 91 NY2d 372); and that defendant was not deprived of a fair trial by the prosecutor’s limited inquiry on cross-examination concerning a telephone call to his attorney upon allegedly learning of his wife’s death. Nor did County Court err by refusing to allow defendant to call a private investigator to introduce testimony concerning an experiment that he had conducted (to test the credibility of Gorsline) by driving his automobile along the route that Gorsline stated he took on the night of Eschenbecker’s death and recording the elapsed time. Given the uncertainty of the similarity of the conditions, and the fact that the test was based upon the investigator’s estimations of Gorsline’s estimations, County Court did not abuse its discretion in precluding this testimonial evidence as more confusing than relevant (see, People v Acevedo, 40 NY2d 701, 704; People v Boone, 176 AD2d 1085, lv denied 79 NY2d 853; People v Estrada, 109 AD2d 977, 978-979).

Lastly, we are convinced that the sentence imposed should remain undisturbed. Defendant’s contention that the criminal solicitations and murder were all part of a single occurrence is thoroughly unpersuasive. Penal Law § 70.25 (2) requires concurrent sentences to be imposed “when two or more offenses are committed through a single act or through an act which itself constituted one of the offenses and also was a material element of the other” (People v Sturkey, 77 NY2d 979, 980; see, People v Campos, 206 AD2d 633, 634). Here, however, none of the elements underlying defendant’s convictions for criminal solicitation in the fourth degree constituted an element of defendant’s conviction for murder in the second degree, and[*603] they were not committed, through a single act or transaction. Moreover, given the .particularly heinous nature of the crimes committed, and in view of the defendant’s criminal record, we do not find the sentences to be harsh or excessive.

Crew III, J. P., Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.

Although defendant and Eschenbecker had evidently been married, it is unclear whether the marriage was legally recognized.