| People v Jaeger |
| 2012 NY Slip Op 04796 [96 AD3d 1172] |
| June 14, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MichaelJaeger, Appellant. |
—[*1] James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered April 28, 2011, upon a verdict convicting defendant of the crimes of course of sexualconduct against a child in the second degree, endangering the welfare of a child (four counts) andforcible touching.
Based upon allegations that defendant had subjected two of his girlfriend's daughters (born in1992 and 1993) to sexual contact, State Police Investigator Nancy Stack arranged a controlledphone call by the older victim (hereinafter victim A) to defendant. During that recorded call,defendant made comments appearing to substantiate that some sexual activity had occurredbetween the two. Later that day, defendant agreed to accompany police to the State Policebarracks and spoke with Stack. Defendant admitted that he had engaged in inappropriate sexualcontact with victim A on more than one occasion, but denied having sexual intercourse withvictim A or engaging in any sexual contact with her younger sister (hereinafter victim B). He alsosigned a written statement to that effect.
Defendant was thereafter charged in a 17-count indictment with respect to his sexual conductwith the victims. Following a Huntley hearing, County Court denied defendant's motionto suppress his oral and written statements. At the conclusion of the ensuing jury trial, duringwhich the victims testified and defendant's statements were admitted into evidence, defendant[*2]was convicted of course of sexual conduct against a child inthe second degree and four counts of endangering the welfare of a child related to his sexualconduct with victim A, as well as forcible touching related to his conduct with victim B, but wasacquitted of the remaining charges. Sentenced to an aggregate term of five years in prison with10 years of postrelease supervision, defendant now appeals.
We reject defendant's assertion that his oral and written statements to police should havebeen suppressed because he did not knowingly and intelligently waive his Mirandarights.[FN*]Stack read defendant his Miranda rights from a printed card and defendant then asked toread the card himself. After doing so, he stated that he understood his rights and continued tospeak with Stack, thereby impliedly waiving those rights (see People v Sirno, 76 NY2d967, 968 [1990]; People v Garcia,79 AD3d 1248, 1250 [2010], lv denied 16 NY3d 797 [2011]). Prior to takingdefendant's written statement, defendant was asked and was able to read aloud theMiranda warnings, and initialed and signed that part of the statement acknowledging thathe understood his rights and was agreeing to waive them. Thus, County Court's determinationthat defendant understood his rights and voluntarily waived them is amply supported by therecord (see People v Sirno, 76 NY2d at 968; People v Garcia, 79 AD3d at 1250;People v Petrie, 3 AD3d 665,666 [2004]; People v Bolarinwa, 258 AD2d 827, 829 [1999], lv denied 93 NY2d1014 [1999]).
Nor are we persuaded by defendant's contention that his statements were the product ofcoercive and deceptive interrogation practices by the police. "Police may generally engage indeception while investigating a crime, with suppression required only where 'the deception wasso fundamentally unfair as to deny due process or [where] a promise or threat was made thatcould induce a false confession' " (People v Colbert, 60 AD3d 1209, 1211 [2009], quoting Peoplev Tarsia, 50 NY2d 1, 11 [1980]; seePeople v Berumen, 46 AD3d 1019, 1020-1021 [2007], lv denied 10 NY3d 808[2008]; People v Dishaw, 30 AD3d689, 690 [2006], lv denied 7 NY3d 787 [2006]). On more than one occasion duringthe interview, Stack suggested to defendant that victim A accused him of having intercourse withher despite the victim neither stating nor implying that any intercourse had occurred. However, asthe tactic employed by Stack was not accompanied by any threats or promises that might induce afalse confession and was not fundamentally unfair, the deception did not render defendant'sconfessions involuntary (see People vThomas, 93 AD3d 1019, 1027-1028 [2012]; People v Dishaw, 30 AD3d at 690;People v Serrano, 14 AD3d874, 875 [2005], lv denied 4 NY3d 803 [2005]; People v Henderson, 4 AD3d 616, 617 [2004], lv denied 2NY3d 800 [2004]).
We are similarly unconvinced that the verdict is against the weight of the evidence. At trial,victim A testified that defendant subjected her to sexual contact on numerous occasions over thecourse of several years and victim B recounted an incident wherein defendant entered herbedroom and groped her breasts. The People also presented the controlled call between victim Aand defendant, wherein defendant made several veiled references to having sexual contact withher, as well as the audio recording of the interview and defendant's written statement. Stacktestified regarding her administration of Miranda warnings, and defendant's waiverthereof, and the circumstances surrounding the interview and defendant's admissions. Defendant,on the other hand, disavowed his confessions and denied ever having engaged in [*3]sexual contact with either of the victims. He testified that he was ina daze during the interview from lack of sleep, that his "mind was not there" when he was readhis Miranda rights, and that he did not recall portions of the conversation he had withStack. He testified further that he was being pressured by Stack to sign the statement, which hedid not fully read, and ultimately did so because he felt he had to. Defendant's testimonypresented credibility issues that the jury reasonably resolved against him and, upon viewing theevidence in a neutral light and according deference to those credibility determinations, we aresatisfied that defendant's convictions are supported by the weight of the evidence (see People v Underdue, 89 AD3d1132, 1133 [2011]; People vJohnson, 79 AD3d 1264, 1266 [2010], lv denied 16 NY3d 832 [2011]; People v Rosado, 36 AD3d 965,966-967 [2007], lv denied 9 NY3d 993 [2007]).
Finally, we reject defendant's claim that his sentence was harsh and excessive. Given thenature of the crimes, defendant's exploitation of the position of trust he held over the victims andhis failure to accept responsibility or express remorse for his actions, we find no abuse ofdiscretion or extraordinary circumstances warranting a reduction of the sentence in the interest ofjustice (see People v Howard, 20AD3d 768, 769 [2005], lv denied 5 NY3d 806 [2005]; People v Doherty,305 AD2d 867, 868 [2003], lv denied 100 NY2d 580 [2003]; People v Miller,226 AD2d 833, 837 [1996], lv denied 88 NY2d 939 [1996]). Defendant's remainingcontentions have not been preserved for our review.
Mercure, Rose, Lahtinen and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Despite the People's assertionsto the contrary, defendant's challenges to the voluntariness of his statements are properly beforeus.