Opinion
November 12, 1999
Appeal from Judgment of Wyoming County Court, Griffith, J. — Sexual Abuse, 1st Degree.
PRESENT: GREEN, J. P., LAWTON, PIGOTT, JR., HURLBUTT AND CALLAHAN, JJ.
Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum:
We reject defendant's contention that County Court erred in granting the District Attorney's application for appointment of a Special District Attorney pursuant to County Law § 701. The application contains reasonable grounds supporting the position of the District Attorney that he is disqualified from prosecuting defendant based upon Canon 9 of the Code of Professional Responsibility (see, People v. Schrager, 74 Misc.2d 833, 834; see also, People v. Baker, 99 A.D.2d 656, appeal dismissed 64 N.Y.2d 1027; People v. Anonymous, 126 Misc.2d 673, 677). The record does not support defendant's contention that the appointment of a Special District Attorney was not effected in accordance with 22 NYCRR 200.15 (see, People v. Germano, 249 A.D.2d 489, lv denied 92 N.Y.2d 897). The court properly denied the motion to suppress statements made by defendant at his place of employment to two FBI agents. The record supports the court's determination that defendant was not in custody when the statements were made (see, Matter of Kwok T., 43 N.Y.2d 213, 219-220; People v. Yukl, 25 N.Y.2d 585, 589, rearg denied 26 N.Y.2d 883, cert denied 400 U.S. 851). Defendant's contention that the evidence is insufficient to support the conviction is not preserved for our review (see, CPL 470.05; People v. Gray, 86 N.Y.2d 10, 19), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [a]).
We reject defendant's contention that the sentence is unduly harsh or severe. We modify the judgment, however, by reducing the minimum term of incarceration from 2 years to 1+ years to comply with Penal Law § 70.02 as it provided in the spring of 1994 when the crime was committed (see, People v. Jones, 261 A.D.2d 920 [decided May 7, 1999], lv denied 93 N.Y.2d 972).