Opinion
51 KA 17–00186
04-26-2019
The PEOPLE of the State of New York, Respondent, v. Willie SANDERS, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence imposed on count two of the indictment, and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Erie County, for resentencing on that count.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of predatory sexual assault ( Penal Law § 130.95[3] ) and attempted rape in the first degree (§§ 110.00, 130.35[1] ), defendant contends that Supreme Court erred in refusing to suppress statements that he made to the police. We reject that contention.
Initially, the court properly concluded that the statement that defendant made while being transported to the police station was spontaneous. Although that statement was made while defendant was in custody, it was "in no way the product of an interrogation environment [or] the result of express questioning or its functional equivalent" ( People v. Harris, 57 N.Y.2d 335, 342, 456 N.Y.S.2d 694, 442 N.E.2d 1205 [1982], cert denied 460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 803 [1983] [internal quotation marks omitted]; see People v. Dawson, 149 A.D.3d 1569, 1570–1571, 52 N.Y.S.3d 797 [4th Dept. 2017], lv denied 29 N.Y.3d 1125, 64 N.Y.S.3d 675, 86 N.E.3d 567 [2017] ). Furthermore, the court properly refused to suppress the statements that defendant made at the police station. The evidence presented at the suppression hearing demonstrated that defendant was informed of his Miranda rights, that he understood those rights, and that he was not under duress or undue influence when he made those statements (see People v. DeAngelo, 136 A.D.3d 1119, 1120, 25 N.Y.S.3d 405 [3d Dept. 2016] ; see also People v. Rodwell, 122 A.D.3d 1065, 1067, 996 N.Y.S.2d 398 [3d Dept. 2014], lv denied 25 N.Y.3d 1170, 15 N.Y.S.3d 302, 36 N.E.3d 105 [2015] ). In addition, suppression of those statements is not required based on the tactics used by the detective who questioned defendant at the police station. "It is well established that not all deception of a suspect is coercive, but in extreme forms it may be" ( People v. Thomas, 22 N.Y.3d 629, 642, 985 N.Y.S.2d 193, 8 N.E.3d 308 [2014] ). Here, we conclude that the tactics in question "did not overbear defendant's will or create a substantial risk that he would falsely incriminate himself" ( People v. Tompkins, 107 A.D.3d 1037, 1040, 966 N.Y.S.2d 605 [3d Dept. 2013], lv denied 22 N.Y.3d 1044, 981 N.Y.S.2d 377, 4 N.E.3d 389 [2013] ; see People v. Jenkins, 159 A.D.3d 1419, 1420, 70 N.Y.S.3d 147 [4th Dept. 2018], lv denied 31 N.Y.3d 1118, 81 N.Y.S.3d 377, 106 N.E.3d 760 [2018], reconsideration denied 32 N.Y.3d 1005, 86 N.Y.S.3d 763, 111 N.E.3d 1119 [2018] ; People v. Grigoroff, 131 A.D.3d 541, 544, 14 N.Y.S.3d 497 [2d Dept. 2015] ).
Defendant's contention that the evidence is not legally sufficient to support the conviction is not preserved inasmuch as his motion for a trial order of dismissal was not " ‘specifically directed’ at the error being urged" on appeal ( People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ; see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). In any event, we conclude that the evidence, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), provides a "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury" ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Contrary to defendant's further contention, 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 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
As defendant contends and the People correctly concede, the court imposed an illegal period of postrelease supervision of five years on defendant's conviction of attempted rape in the first degree, a class C violent felony sex offense (see Penal Law §§ 70.02[1][b] ; 70.80[1][b]; 110.00, 110.05[4]; 130.35[1] ). Because defendant is a second violent felony offender, the applicable period of postrelease supervision is between 7 and 20 years (see §§ 70.04[1][a]; 70.45 [2–a] [h] ). Inasmuch as the record does not indicate whether the court intended to impose the minimum or maximum period of postrelease supervision, we modify the judgment by vacating the sentence on count two of the indictment, and we remit the matter to Supreme Court for resentencing on that count (see People v. Bowden, 15 A.D.3d 884, 885, 788 N.Y.S.2d 796 [4th Dept. 2005], lv denied 4 N.Y.3d 851, 797 N.Y.S.2d 425, 830 N.E.2d 324 [2005], reconsideration denied 5 N.Y.3d 786, 801 N.Y.S.2d 806, 835 N.E.2d 666 [2005] ; cf. People v. Roman, 43 A.D.3d 1282, 1283, 842 N.Y.S.2d 640 [4th Dept. 2007], lv denied 9 N.Y.3d 1009, 850 N.Y.S.2d 397, 880 N.E.2d 883 [2007] ). Contrary to defendant's contention, however, the remainder of the sentence is not unduly harsh or severe.
Finally, we note that the certificate of conviction and the order of protection issued at sentencing contain clerical errors that must be corrected (see generally People v. Young, 74 A.D.3d 1864, 1865, 901 N.Y.S.2d 556 [4th Dept. 2010], lv denied 15 N.Y.3d 811, 908 N.Y.S.2d 171, 934 N.E.2d 905 [2010] ). The certificate of conviction incorrectly reflects that the order of protection was issued for a duration of 12 years and must therefore be amended to reflect that the order of protection expires on January 24, 2038, and the order of protection incorrectly recites that defendant was convicted of attempted criminal sexual act in the first degree ( Penal Law §§ 110.00, 130.50[1] ) and must therefore be amended to reflect that defendant was instead convicted of attempted rape in the first degree ( §§ 110.00, 130.35[1] ).