Opinion
KA 01-01580
October 1, 2002.
Appeal from a judgment of Ontario County Court (Harvey, J.), entered May 21, 2001, convicting defendant after a jury trial of, inter alia, assault in the first degree.
ZIMMERMAN TYO, SHORTSVILLE (JOHN E. TYO OF COUNSEL), FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of assault in the first degree (Penal Law § 120.10), assault in the second degree (§ 120.05 [1]), criminal contempt in the second degree (§ 215.50 [3]), and five counts of endangering the welfare of a child (§ 260.10 [1]). Defendant contends that his initial statements to the police and his subsequent written statement should have been suppressed because he had not been advised of his Miranda rights prior to the alleged custodial interrogation resulting in those statements. Here, the police officer merely asked defendant his name and date of birth with respect to the issuance of a warrant on a separate matter and defendant then volunteered information that led to a single investigatory question. Thus, it cannot be said that a reasonable person in defendant's position, innocent of any crime, would have believed that he or she was in custody ( see People v. Yukl, 25 N.Y.2d 585, 589, rearg denied 26 N.Y.2d 845, cert denied 400 U.S. 851; see also People v. Robbins, 236 A.D.2d 823, 824, lv denied 90 N.Y.2d 863; People v. Flecha, 195 A.D.2d 1052). Contrary to defendant's contention, County Court properly exercised its discretion in permitting the prosecutor to ask leading questions of the prosecution's own witness and to impeach that witness inasmuch as the witness was defendant's son ( see People v. Sexton, 187 N.Y. 495, 509; People v. Cuttler, 270 A.D.2d 654, lv denied 95 N.Y.2d 795). We agree with defendant that the court abused its discretion by permitting the prosecutor to question defendant concerning his prior convictions of endangering the welfare of a child and assault in the second degree because they were the same crimes as some of those charged herein ( see People v. Williams, 56 N.Y.2d 236, 239; People v. Sandoval, 34 N.Y.2d 371, 377-378). We conclude, however, that the error is harmless ( cf. Williams, 56 N.Y.2d at 240-241; People v. Shields, 46 N.Y.2d 764).
Defendant contends that the court's refusal to charge the jury in the alternative with respect to the two assault counts resulted in a repugnant verdict. Defendant failed to raise that contention before the jury was discharged and therefore failed to preserve his contention for our review ( see People v. Satloff, 56 N.Y.2d 745, 746 , rearg denied 57 N.Y.2d 674). Defendant further contends that the failure to make a record of an alleged sidebar conference regarding that aspect of the court's charge severely prejudiced his right to a fair trial. "It is defendant's obligation to generate a proper record for review," and here defendant failed to request that a record of the sidebar conference be made ( People v. Mason, 227 A.D.2d 289, 290, affd 89 N.Y.2d 878; see also People v. Morgan, 224 A.D.2d 720, 720, lv denied 88 N.Y.2d 882). Contrary to the further contention of defendant, a reasonable basis was articulated on the record for placing him in physical restraints in the courtroom ( see People v. Rouse, 79 N.Y.2d 934, 935; cf. People v. Vigliotti, 203 A.D.2d 898), and the court issued appropriate instructions, thereby minimizing any potential prejudice to defendant ( see People v. Benito, 256 A.D.2d 221, lv denied 93 N.Y.2d 850, cert denied 528 U.S. 810). In addition, defendant did not object to the failure to make a stenographic record of that portion of the voir dire of the prospective jurors conducted by counsel and thus failed to preserve for our review his present contention that a stenographic record should have been made ( see People v. Vasquez, 89 N.Y.2d 521, 534). The sentence is neither unduly harsh nor severe.