Opinion
224 KA 17–01655
04-27-2018
The PEOPLE of the State of New York, Respondent, v. Jennifer K. KENNARD, Defendant–Appellant.
THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.
MEMORANDUM AND ORDER
Memorandum:
Defendant appeals from a judgment convicting her upon a jury verdict of rape in the third degree ( Penal Law § 130.25[2] ) and endangering the welfare of a child (§ 260.10[1] ). We previously reversed the judgment convicting defendant of, inter alia, six counts of rape in the second degree (§ 130.30[1] ) and granted defendant a new trial ( People v. Kennard, 134 A.D.3d 1519, 23 N.Y.S.3d 522 [4th Dept. 2015] ). The judgment now on appeal is the result of the new trial. Contrary to defendant's contention, the inculpatory responses she gave to a police officer who was completing a prisoner data report were admissible and not subject to suppression even though they were made after defendant unequivocally invoked her right to counsel and not included on the CPL 710.30 notice. The Court of Appeals has held that answers to routine booking questions, i.e., pedigree questions, "fall outside the protection of Miranda if they are ‘reasonably related to the police's administrative concerns’ " ( People v. Rodney, 85 N.Y.2d 289, 292, 624 N.Y.S.2d 95, 648 N.E.2d 471 [1995], quoting Pennsylvania v. Muniz, 496 U.S. 582, 601–602, 110 S.Ct. 2638, 110 L.Ed.2d 528 [1990] ). Inasmuch as responses to pedigree questions "are not suppressible even when obtained in violation of Miranda, defendant lacks a constitutional basis upon which to challenge the voluntariness of [her] statement[s] and[,] where there is no question of voluntariness, the People are not required to serve defendant with [a CPL 710.30 ] notice" concerning those statements ( id. at 293, 624 N.Y.S.2d 95, 648 N.E.2d 471 ).
Here, the questions, some of which were related to the charges for which defendant was being arrested, were "neither ‘a disguised attempt at [an] investigatory interrogation’ " ( People v. Raucci, 109 A.D.3d 109, 120, 968 N.Y.S.2d 211 [3d Dept. 2013], lv. denied 22 NY3d 1158, 984 N.Y.S.2d 642, 7 N.E.3d 1130 [2014] ), "nor [inquiries] that the police ‘should have known [were] reasonably likely to elicit ... incriminating response[s]’ " ( id., quoting Rhode Island v. Innis, 446 U.S. 291, 302, 100 S.Ct. 1682, 64 L.Ed.2d 297 [1980] ; cf. People v. Buza, 144 A.D.3d 1495, 1496–1497, 42 N.Y.S.3d 486 [4th Dept. 2016] ; People v. Slade, 133 A.D.3d 1203, 1206–1207, 20 N.Y.S.3d 763 [4th Dept. 2015], lv denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 [2016] ).
The questions related to defendant's age and date of birth were taken straight from the prisoner data report and "were not designed to inculpate defendant" ( People v. Jackson, 237 A.D.2d 179, 180, 655 N.Y.S.2d 17 [1st Dept. 1997], lv denied 89 N.Y.2d 1095, 660 N.Y.S.2d 389, 682 N.E.2d 990 [1997] ; see People v. Alhadi, 151 A.D.2d 873, 874–875, 543 N.Y.S.2d 175 [3d Dept. 1989], lv denied 74 N.Y.2d 804, 546 N.Y.S.2d 562, 545 N.E.2d 876 [1989] ; People v. White, 149 A.D.2d 939, 939, 540 N.Y.S.2d 72 [4th Dept. 1989], lv denied 74 N.Y.2d 821, 546 N.Y.S.2d 579, 545 N.E.2d 893 [1989] ). The same is true of the questions related to defendant's maiden name (see People v. McCloud, 50 A.D.3d 379, 379–380, 855 N.Y.S.2d 113 [1st Dept. 2008], lv denied 11 N.Y.3d 738, 864 N.Y.S.2d 397, 894 N.E.2d 661 [2008] ; see also People v. Zarbhanelian, 96 A.D.3d 511, 511, 946 N.Y.S.2d 164 [1st Dept. 2012], lv denied 19 N.Y.3d 1106, 955 N.Y.S.2d 562, 979 N.E.2d 823 [2012] ; People v. Alleyne, 34 A.D.3d 367, 368, 828 N.Y.S.2d 2 [1st Dept. 2006], lv denied 8 N.Y.3d 918, 834 N.Y.S.2d 509, 866 N.E.2d 455 [2007], cert denied 552 U.S. 878, 128 S.Ct. 192, 169 L.Ed.2d 130 [2007] ), and "whether [s]he had any scars[ or] tat[t]oos" ( People v. Richard, 232 A.D.2d 872, 874, 649 N.Y.S.2d 509 [3d Dept. 1996], lv denied 89 N.Y.2d 1099, 660 N.Y.S.2d 393, 682 N.E.2d 994 [1997] ).
Defendant further contends that County Court limited her right to present a defense when it precluded defense witnesses from rebutting testimony suggesting that defendant had engaged in grooming behavior by giving the victim multiple gifts. We reject that contention. It is well settled that "[c]haracter evidence is strictly limited to testimony concerning the [party's] reputation in the community ..., and thus a character witness may not testify to specific acts in order to establish" a particular character trait ( People v. Jimmeson, 101 A.D.3d 1678, 1679, 956 N.Y.S.2d 760 [4th Dept. 2012], lv denied 21 N.Y.3d 944, 968 N.Y.S.2d 6, 990 N.E.2d 140 [2013] [internal quotation marks omitted]; see People v. Berge, 103 A.D.2d 1041, 1041–1042, 478 N.Y.S.2d 433 [4th Dept. 1984] ; see generally People v. Van Gaasbeck, 189 N.Y. 408, 421, 82 N.E. 718 [1907] ).
Here, the court properly precluded defense witnesses from testifying about specific times that defendant had given gifts to other people and limited their testimony to defendant's general reputation for generosity. Defendant contends that the court improperly interjected itself into the proceedings by sua sponte limiting the testimony without any objection by the prosecutor and that the evidence was admissible as habit evidence. Those contentions are raised for the first time on appeal, and thus they are not preserved for our review (see People v. Chavis, 59 A.D.3d 240, 240, 873 N.Y.S.2d 566 [1st Dept. 2009], lv denied 12 N.Y.3d 913, 884 N.Y.S.2d 694, 912 N.E.2d 1075 [2009] ; People v. Infante, 217 A.D.2d 440, 440, 629 N.Y.S.2d 684 [1st Dept. 1995], lv denied 87 N.Y.2d 847, 638 N.Y.S.2d 605, 661 N.E.2d 1387 [1995] ; see also People v. Simmons, 39 A.D.3d 235, 236, 833 N.Y.S.2d 437 [1st Dept. 2007], lv denied 9 N.Y.3d 851, 840 N.Y.S.2d 777, 872 N.E.2d 890 [2007] ), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Viewing 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 [2007] ), we conclude that the verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). We reject defendant's contention that the sentence following the retrial is presumptively vindictive because the sentence imposed on the rape count is greater than the sentence imposed on that same count following the first trial. Where, as here, "a defendant receives a greater sentence on an individual count, but an equal or lesser over-all sentence, courts must examine the record to determine whether there is a reasonable likelihood that the enhanced sentence on the individual count was the result of vindictiveness" ( People v. Young, 94 N.Y.2d 171, 179, 701 N.Y.S.2d 309, 723 N.E.2d 58 [1999], rearg. denied 94 N.Y.2d 876, 705 N.Y.S.2d 7, 726 N.E.2d 484 [2000] ). We conclude that the record "does not support defendant's contention that there is a reasonable likelihood that the enhanced sentence was the result of vindictiveness" ( People v. Bludson, 15 A.D.3d 912, 913, 788 N.Y.S.2d 758 [4th Dept. 2005], lv denied 4 N.Y.3d 827, 796 N.Y.S.2d 582, 829 N.E.2d 675 [2005], reconsideration denied 5 N.Y.3d 785, 801 N.Y.S.2d 806, 835 N.E.2d 666 [2005] ; cf. People v. Rogers, 56 A.D.3d 1173, 1174–1175, 867 N.Y.S.2d 812 [4th Dept. 2008], lv denied 12 N.Y.3d 787, 879 N.Y.S.2d 64, 906 N.E.2d 1098 [2009] ). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.