People v. Pugh

107 A.D.2d 521, 487 N.Y.S.2d 415, 1985 N.Y. App. Div. LEXIS 42558
CourtAppellate Division of the Supreme Court of the State of New York
DecidedApril 5, 1985
StatusPublished
Cited by13 cases

This text of 107 A.D.2d 521 (People v. Pugh) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Pugh, 107 A.D.2d 521, 487 N.Y.S.2d 415, 1985 N.Y. App. Div. LEXIS 42558 (N.Y. Ct. App. 1985).

Opinion

OPINION OF THE COURT

Denman, J.

Cynthia Pugh was convicted of murder in the second degree for the February 24, 1983 shooting death of James Pipines, her employer and lover, while he lay in bed in his home in Fayetteville. After her first trial ended in a hung jury, a second trial was held at which 62 witnesses testified and 96 exhibits were received. Additionally, there were extensive hearings on defendant’s posttrial motions to set aside the verdict. Defendant now seeks reversal of the judgment of conviction and dismissal of the indictment or, in the alternative, a new trial. She claims that the evidence of her guilt was legally insufficient; that the court erred in denying her motion to set aside the verdict for the People’s failure to provide her with Brady material; that the court erred in denying her motion to set aside the verdict on the ground that a juror had given false answers which concealed a preexisting bias; that prosecutorial misconduct compels reversal; and that the court erred in prohibiting defendant from introducing certain proof. We have reviewed each of the several grounds of error urged and find that none requires reversal.

defendant’s account of the day of the murder

Defendant claimed that on the night preceding the day of the murder she went bowling and returned home at approximately midnight. Her daughter, Kelly, and Michelle Ailing were asleep in Kelly’s bedroom. Her son Gary was asleep on the living room couch and the television was on. She turned off the television and went upstairs to bed. Awakened during the night by the family dogs, she arose, put her coat over her night clothes, went downstairs, and let the dogs out. After a few minutes, she let the dogs in and returned to bed. She arose the next morning at [523]*523approximately 7:30, showered and washed her hair, went to the basement, turned on the clothes dryer for a few moments, removed a load of clothes from the dryer, folded them, and placed a load of clothes from the washer into the dryer. She went upstairs to dress, went into her daughter’s room to borrow a pair of shoes, and left for work at approximately 8:30. She drove toward Central City Roofing, her place of employment, and stopped en route for a morning newspaper. She then went to Denny’s restaurant, approximately one-half mile from Central City Roofing. She arrived at Denny’s at approximately 9:00 a.m., entered the table area of the restaurant, ordered juice, eggs, ham, home fries and coffee, and was served by a chunky woman in her mid-forties. She arrived at her office at approximately 10:30.

The decedent was president of Central City Roofing. It was adduced at trial that he normally came to work at 10:00-10:30 a.m. When he had not appeared at the office by noon, defendant testified that she became concerned and inquired about him. A fellow employee said that he had talked to Pipines that morning at approximately 7:30. Shortly after 2:00 p.m. she called Pluto Poulios, Pipines’ partner in Rochester, and told him that she had not heard from the victim and that she was going to contact the corporation’s lawyer, William Mackay. When she called Mackay’s office, she was informed that he was on vacation. Sometime thereafter she called Poulios again and he directed her to go to Pipines’ home to see if something was wrong. They had both called the victim’s home a few times during the course of the day but received no answer.

She left her office at about 3:30 and proceeded to the Pipines’ residence. Approaching a side entrance near the garage, she knocked on the door and rang the doorbell. Receiving no answer, she went to the main entrance and rang that bell and knocked on windows. When she started to leave, she noticed that the victim’s Mercedes was parked in a circular driveway to the right of the entrance drive and that a station wagon belonging to Billy Pipines, the victim’s son, was also in the drive. She therefore went back to the house and once more rang the doorbell and knocked on the door. She opened the storm door on the entrance near the garage and when she tried the inner door, it opened. She then proceeded through the house calling Pipines’ name. As she approached the master bedroom, she saw the victim lying on the bed with his back to her and thought he was asleep. She climbed on the bed behind him and attempted to turn him over by pulling on his shoulder. When she was unable to move him, she went to the other side of the bed where she was facing him. [524]*524She tried to push him, touching his neck to check for a pulse and noticed that his neck was warm. She then put her head down next to his and could see blood and what appeared to be vomit around his mouth and that his tongue was swollen. It was fairly dark in the room. She left the house and drove to the Fayetteville Mall where she used a pay phone to call Poulios. After she informed him that Pipines was dead, he told her to return to the house and call the police. After calling the police from the Pipines’ residence, she went to the garage, opened the door and awaited the police in the garage.

THE MURDER WEAPON

The victim was killed by a bullet which entered behind his right ear and emerged in front of his left ear. The spent bullet was caught in the victim’s cupped left hand and fell from his hand when the body was moved a few inches by the police. It was later established that the bullet was fired from a .38 Derringer pistol belonging to defendant’s common-law husband, which was found on March 5 in a grassy area of the Fayetteville Mall.

THE FLAWS IN DEFENDANT’S STORY

(1) Defendant’s account of discovering the body

Defendant’s first story to the police was that, when she discovered the body, she attempted to give him mouth-to-mouth resuscitation. She later recanted that statement. She was unable, however, to make any significant changes in her first account that she had gotten on the bed behind decedent and tried to turn him over by tugging on his shoulder and then went around to the front of him, attempting to push him backward. In her trial testimony she conceded that she knew the victim was dead, but said that she thought he might have suffered a stroke. Examination of the pictures of the decedent makes graphically clear that no one viewing that body, the condition of the head and the substantial amount of blood on the sheet could possibly have failed to recognize immediately that the man had been shot. The prosecutor pointedly suggested in his cross-examination and on summation that defendant’s account of the finding of the body was based on the way he appeared when she left him that morning after shooting him. At that time, he very likely had only a small wound behind the ear, had bled very little and would have looked as though he were sleeping. The medical examiner testified, however, that after the fatal shot was fired, the victim did not die instantly. Although in a comatose condition, he continued to bleed and the brain tissue oozed out of the puncture. When confronted with the pictures of decedent lying [525]*525in a large bloodstain with bloody tissue congealed on the back of his head, defendant attempted to account for her failure to see what was there to be seen by stating that it was dark in the bedroom. Yet that statement was rebutted by the testimony of police officers who entered the room approximately an hour after defendant supposedly had discovered the body. They stated that sunlight was streaming into the room through the adjacent conservatory and that there was sufficient light to read.

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Cite This Page — Counsel Stack

Bluebook (online)
107 A.D.2d 521, 487 N.Y.S.2d 415, 1985 N.Y. App. Div. LEXIS 42558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-pugh-nyappdiv-1985.