Opinion
2013-11-15
The PEOPLE of the State of New York, Respondent, v. John BROWN, Defendant–Appellant.
Jeannie D. Michalski, Public Defender, Geneseo, for Defendant–Appellant. Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
Jeannie D. Michalski, Public Defender, Geneseo, for Defendant–Appellant. Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO AND WHALEN, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a jury verdict of rape in the second degree (Penal Law § 130.30[1] ), sexual abuse in the second degree (§ 130.60[2] ), and endangering the welfare of a child (§ 260.10[1] ), defendant contends that County Court erred in refusing to suppress the statements that he made to the police. Defendant's specific contentions are that, contrary to the court's conclusion, he was in custody, that the statements were the result of coercion and intimidation by the police sergeant who questioned him, and that he did not understand the import of the Miranda warnings provided by the police sergeant. We reject those contentions.
“In determining whether a defendant was in custody for Miranda purposes, ‘[t]he test is not what the defendant thought, but rather what a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant's position’ ” (People v. Kelley, 91 A.D.3d 1318, 1318, 937 N.Y.S.2d 514, lv. denied19 N.Y.3d 963, 950 N.Y.S.2d 115, 973 N.E.2d 213, quoting People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89). Here, the record establishes that defendant voluntarily drove himself to the police station, was not handcuffed, was permitted to leave the police station to smoke a cigarette, and was not subjected to lengthy, coercive or accusatory questioning ( see People v. Towsley, 53 A.D.3d 1083, 1084, 862 N.Y.S.2d 236, lv. denied11 N.Y.3d 795, 866 N.Y.S.2d 621, 896 N.E.2d 107; People v. Duda, 45 A.D.3d 1464, 1466, 845 N.Y.S.2d 671, lv. denied10 N.Y.3d 764, 854 N.Y.S.2d 326, 883 N.E.2d 1261). Consequently, we conclude that defendant was not in custody. In any event, the police sergeant provided Miranda warnings at the start of the interview, prior to any statements being made by defendant.
We also reject defendant's contention that his statements were the result of police coercion and intimidation. The record of the suppression hearing supports the court's determination that the statements were not coerced, i.e., defendant received no promises in exchange for making the statements and he was not threatened in any way, and “the court's determination is entitled to great deference” (People v. Peay, 77 A.D.3d 1309, 1310, 908 N.Y.S.2d 316, lv. denied15 N.Y.3d 955, 917 N.Y.S.2d 114, 942 N.E.2d 325; see People v. Heary, 104 A.D.3d 1208, 1210, 960 N.Y.S.2d 812, lv. denied21 N.Y.3d 943, 968 N.Y.S.2d 6, 990 N.E.2d 140, reconsideration denied21 N.Y.3d 1016, 971 N.Y.S.2d 498, 994 N.E.2d 394; see generally People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380). Contrary to defendant's further contention, the evidence introduced at the suppression hearing fails to establish that he did not understand the import of the Miranda warnings. To the contrary, having reviewed the record of the Huntley hearing, we conclude that “defendant understood the Miranda warnings and, with such understanding, freely chose to answer the questions asked by the police” (People v. Benton, 158 A.D.2d 987, 987, 551 N.Y.S.2d 139, lv. denied75 N.Y.2d 963, 556 N.Y.S.2d 248, 555 N.E.2d 620; see People v. Young, 303 A.D.2d 952, 952, 755 N.Y.S.2d 907).
We reject defendant's further contention that the statements were not sufficiently corroborated. “A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed” (CPL 60.50). “[T]he policy behind the statute is satisfied by the production of some [evidence], of whatever weight, that a crime was committed by someone” (People v. Daniels, 37 N.Y.2d 624, 629, 376 N.Y.S.2d 436, 339 N.E.2d 139; see People v. Booden, 69 N.Y.2d 185, 187–188, 513 N.Y.S.2d 87, 505 N.E.2d 598). Viewing the evidence in the light most favorable to the People ( see People v. Potter, 262 A.D.2d 1074, 1074, 693 N.Y.S.2d 870; see generally People v. Smith, 55 N.Y.2d 945, 947, 449 N.Y.S.2d 177, 434 N.E.2d 246), we conclude that the 13–year–old victim's testimony that defendant had sexual intercourse with her was sufficient to meet the corroboration requirement.
Defendant contends that the verdict is against the weight of the evidence because, inter alia, the jury acquitted him of certain additional crimes involving the same victim. That contention is actually a challenge to the verdict as repugnant, but defendant failed to preserve that challenge for our review inasmuch as he did not object to the verdict on that ground before the jury was discharged ( see People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ). Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we otherwise reject defendant's contention that the verdict is against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Defendant also failed to preserve for our review his contention that the court erred in permitting the People to recall the victim to testify following the testimony of another witness ( see People v. Hare, 27 A.D.3d 1171, 1172, 811 N.Y.S.2d 539, lv. denied6 N.Y.3d 894, 817 N.Y.S.2d 629, 850 N.E.2d 676; People v. Cunningham, 13 A.D.3d 1118, 1119–1120, 786 N.Y.S.2d 677, lv. denied4 N.Y.3d 829, 796 N.Y.S.2d 584, 829 N.E.2d 677). In any event, we conclude that the court did not abuse its discretion in permitting the People to recall the victim as a witness ( see People v. Rostick, 244 A.D.2d 768, 768–769, 666 N.Y.S.2d 235, lv. denied91 N.Y.2d 929, 670 N.Y.S.2d 411, 693 N.E.2d 758).
Defendant failed to preserve for our review his further contention that the sentence imposed was a vindictive punishment for rejecting the plea offer and proceeding to trial ( see People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017). In any event, that contention is without merit. Defendant primarily relies upon the fact that a longer sentence was imposed after trial, but “[i]t is well settled that [t]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting his right to trial” (People v. Spencer, 108 A.D.3d 1081, 1083, 968 N.Y.S.2d 792 [internal quotation marks omitted] ). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.