Opinion
2014-11-21
The PEOPLE of the State of New York, Respondent, v. Frank L. FLOWERS, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, and DeJOSEPH, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a jury verdict of sexual abuse in the first degree (Penal Law § 130.65[3] ), defendant contends that he was denied his right to be present during a material stage of the trial. We reject that contention. “Defendant concedes that the pretrial conference[ was] held to discuss a possible plea bargain, and thus his presence was not required” (People v. Daugherty, 289 A.D.2d 1029, 1030, 735 N.Y.S.2d 838; see People v. Elliot, 299 A.D.2d 731, 733–734, 751 N.Y.S.2d 331).
Defendant further contends that a police detective continued to question him after he invoked his right to remain silent, and that County Court therefore erred in refusing to suppress the video recording of his interrogation. We also reject that contention. “ ‘It is well settled ... that, in order to terminate questioning , the assertion by a defendant of his right to remain silent must be unequivocal and unqualified’ ” (People v. Zacher, 97 A.D.3d 1101, 1101, 948 N.Y.S.2d 509, lv. denied20 N.Y.3d 1015, 960 N.Y.S.2d 359, 984 N.E.2d 334). The issue whether such a “request was ‘unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request[,] including the defendant's demeanor, manner of expression and the particular words found to have been used by the defendant’ ” ( id., quoting People v. Glover, 87 N.Y.2d 838, 839, 637 N.Y.S.2d 683, 661 N.E.2d 155). Here, we agree with the People that defendant “did not clearly communicate a desire to cease all questioning indefinitely” (People v. Caruso, 34 A.D.3d 860, 863, 822 N.Y.S.2d 825, lv. denied8 N.Y.3d 879, 832 N.Y.S.2d 491, 864 N.E.2d 621). Rather, he merely indicated that he did not want to discuss certain topics broached by the detective, which does not constitute an unequivocal assertion of the right to remain silent ( see People v. Morton, 231 A.D.2d 927, 928, 647 N.Y.S.2d 897, lv. denied89 N.Y.2d 944, 655 N.Y.S.2d 895, 678 N.E.2d 508; see also People v. Allen, 147 A.D.2d 968, 968, 537 N.Y.S.2d 415, lv. denied73 N.Y.2d 1010, 541 N.Y.S.2d 765, 539 N.E.2d 593, reconsideration denied74 N.Y.2d 660, 543 N.Y.S.2d 403, 541 N.E.2d 432), especially in light of his continued participation in the conversation. In any event, we conclude that any error in admitting the challenged statements is harmless ( see generally People v. Clyde, 18 N.Y.3d 145, 153–154, 938 N.Y.S.2d 243, 961 N.E.2d 634, cert. denied ––– U.S. ––––, 132 S.Ct. 1921, 182 L.Ed.2d 784; People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).
Defendant failed to request a jury charge on the voluntariness of his statements and did not object to the court's failure to give such a charge, and he thus failed to preserve for our review his contention that the court erred in failing to do so ( seeCPL 470.05[2]; People v. Burch, 256 A.D.2d 1233, 1233, 684 N.Y.S.2d 101, lv. denied93 N.Y.2d 871, 689 N.Y.S.2d 433, 711 N.E.2d 647). 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] ).
Contrary to defendant's further contention, the court did not err in admitting photographs of the victim's injured vagina in evidence. “[P]hotographs are admissible if they tend ‘to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered’ ” (People v. Wood, 79 N.Y.2d 958, 960, 582 N.Y.S.2d 992, 591 N.E.2d 1178). Here, defendant was initially charged with predatory sexual assault against a child, which, insofar as relevant here, required that the People establish that he “commit[ed] the crime of rape in the first degree” (Penal Law § 130.96). That crime required that the People prove that defendant “engage[d] in sexual intercourse with another person ... [w]ho is less than eleven years old” (§ 130.35[3] ), and sexual intercourse “has its ordinary meaning and occurs upon any penetration, however slight” (§ 130.00[1] ). Thus, inasmuch as the photographs were “probative on the issue of penetration, corroborated the infant victim's ... testimony, and illustrated the medical testimony” (People v. Stebbins, 280 A.D.2d 990, 990, 720 N.Y.S.2d 672, lv. denied96 N.Y.2d 925, 732 N.Y.S.2d 642, 758 N.E.2d 668), there was no error in their admission.
We reject defendant's additional contention that the court abused its discretion in adjudicating him a persistent felony offender and in imposing a life sentence ( see People v. Smart, 100 A.D.3d 1473, 1475, 954 N.Y.S.2d 322, affd. 23 N.Y.3d 213, 989 N.Y.S.2d 631, 12 N.E.3d 1061; People v. McCullen, 63 A.D.3d 1708, 1709, 881 N.Y.S.2d 577, lv. denied13 N.Y.3d 747, 886 N.Y.S.2d 101, 914 N.E.2d 1019). The sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.