People v. Lewis

Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered June 16, 1982, upon a verdict convicting defendant of the crime of murder in the second degree. 11 On September 15, 1981, the badly decomposed body of 20-year-old Lynn May Bailey was found floating face down in Cooper Lake in Ulster County. Her body was encased in a black vinyl zippered bag, fully clothed, with her wrists tied to her ankles and her neck and legs bound with two sweaters. The bag, weighted down with stones, was fastened about her body with a blouse and a pair of suspenders. There was no evidence of a struggle or any traumatic injuries other than fresh needle marks in each arm near the elbow, indicating an intravenous injection. An autopsy established drowning as the cause of death, with the further opinion from the People’s forensic expert that the victim had been conscious when placed in the lake. A general toxicological screening by the New York State Police laboratory was negative, except for a blood alcohol content finding of .09%. The date of death was between September 10,1981 and September 13,1981. H The last person known to have seen Bailey alive was defendant. Although defendant did not testify at his trial, a series of taped conversations he had with police officers disclosed that he had been living with Bailey in an apartment in the Town of Woodstock for about a year, until their final breakup on the evening of September 10, 1981. Following an argument and their decision to part on this occasion, Bailey packed a few personal items in a black zippered vinyl bag and asked defendant to drive her to nearby Willow, New York. The argument increased in severity to the point where defendant put her out of the vehicle at 2:30 a.m., September 11,1981, in a secluded, wooded area about two miles from the location where her body was ultimately discovered. He then returned to the apartment, and later in the morning, removed the remainder of Bailey’s personal belongings, packed in black plastic bags, to the Saugerties dump. Defendant then surrendered the key to the apartment and received the $600 security deposit from the real estate agent from whom he and Bailey had rented the apartment. He also revealed that, previously, on September 7,1981, he had contacted the agent and told her to remove Bailey’s name from the lease. Thereafter, defendant drove to the City of Kingston on an errand for his employer, Frank Faucci, who operated a taxi service, where the car broke down. He then purchased a bus ticket to Los Angeles, California, boarded the bus and departed. 11 On September 15, 1981, defendant called Constable Holsapple of the Town of Woodstock, inquiring if a warrant had been issued for his arrest for abandoning Faucci’s vehicle in Kingston. On that occasion, he advised Holsapple that he had learned that Bailey was missing and that he had obtained that information from her parents. Since Holsapple was, at that moment, unaware of the disappearance of Bailey, he asked defendant to call him again the next day. Defendant complied, and the ensuing telephone call was recorded. The original call on September 15, 1981 was not recorded. The tape recording of the September 16 call, as well as one on September 17, were received in evidence at defendant’s trial. The conversations were extensive and contained a litany of the problems which confronted defendant during his relationship with Bailey. Although he described these problems, his emotional state and the often physical contacts between them, he denied ever causing her any harm. The extensive conversation on September 17, 1981 provided the basis to trace the source of defendant’s call, and he was, accordingly, arrested by the San Francisco police at a public telephone booth in that city while in conversation with police authorities in Woodstock. Charged with the murder of Bailey, defendant was indicted, tried and convicted upon the evidence accumulated by the investigative authorities, the telephone conversations with local police and taped interviews with members of the San Francisco Police Department. 1 Since all of the significant evidence connecting defendant with the murder is circumstantial in nature, on this appeal defendant first contends that his guilt was not proven beyond a reasonable doubt. A careful review of the evidence presented by the prosecution leads us to conclude that the jury could find that defendant’s guilt was proven beyond a reasonable doubt. He was the last person known to have seen Bailey alive; their stormy relationship of a year’s period was interrupted 10 times with similar separations, culminating with the final one on September 10, 1981. He was beset with serious financial and emotional problems, founded in a deep jealously of his paramour’s interest in other, more affluent, men. After abandoning her in a secluded area, defendant admitted disposing of all of her personal belongings, including linens, clothing, family gifts, her car registration and driver’s license. These items were recovered by the State Police with the aid of a bulldozer from the Saugerties dump. 11 After disposing of these personal items, he then took possession of his only remaining asset, the $600 security deposit, fled the jurisdiction, changed his appearance by cutting his long hair and removing all facial growth, called the local police from Las Vegas, Nevada, leading them to believe he was in Los Angeles, inquired about a possible larceny charge, and then parenthetically informed the officer that Bailey was missing at a time when the officer had no report of such a missing person. Defendant stated that the source of this information was a telephone conversation he had with Bailey’s parents, but both parents testified that no such call was ever made.* Later, defendant insisted he had stated that he learned of Bailey’s disappearance from a friend and co-worker at the taxi company, Barry Titus, but no record of such a call was found and all other calls made by defendant relative to this matter were made as charges against his parents’ home telephone in Rhode Island. In any event, the jury, as a matter of credibility, accepted the testimony of Constable Holsapple on this issue, and were obviously concerned about it since they requested that testimony be read back to them after they retired to deliberate. Thus, the People established opportunity, motive, flight from the scene and false statements made to the authorities, together with a feigned posture of co-operation which could be construed as an attempt to conceal guilt (People v Harris, 306 NY 345, 348-349). 11 It is our view that defendant was enmeshed in a web of circumstantial evidence which fulfills the requirement that the facts presented are not only inconsistent with innocence, but exclude to a moral certainty every other reasonable hypothesis but guilt (People v Montanez, 41 NY2d 53). The jury was so charged as to the law and they were satisfied that such facts supported the finding of guilt (see People v Benzinger, 36 NY2d 29, 32). Viewing these facts most favorably to the People, as we must do under these circumstances (People v Leach, 57 AD2d 332, 337, affd 46 NY2d 821), we find the trial evidence sufficient (see People v Gallo, 75 AD2d 148). $ We also reject defendant’s arguments of lack of probable cause to arrest him in the telephone booth in San Francisco and of prosecutorial misconduct in summation (see People v McRay, 51 NY2d 594, 602; People v Douglas, 36 AD2d 994, affd 30 NY2d 592). H Judgment affirmed. Kane, J. P., Weiss and Levine, JJ., concur.

* This information was obtained by Constable Holsapple during the call of September 15, 1981, which was not recorded.