| People v Vanness |
| 2013 NY Slip Op 03505 [106 AD3d 1262] |
| May 16, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vMichael Vanness, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
McCarthy, J. Appeal from a judgment of the County Court of Warren County (HallJr., J.), rendered January 13, 2010, convicting defendant upon his plea of guilty of thecrimes of burglary in the second degree, disseminating indecent material to a minor in thefirst degree and endangering the welfare of a child (two counts).
Defendant, who was 27 years old, was intercepted by police when he went to meet a15-year-old girl (hereinafter the victim) he had been text messaging. After speaking withpolice, defendant was charged with endangering the welfare of a child. A few days later,a homeowner caught defendant climbing into the bedroom window of his 14-year-olddaughter. After admitting that he sent that girl a text message picture of his penis on thecell phone that was secured from him after his first arrest, defendant was charged withburglary in the second degree, disseminating indecent material to a minor in the firstdegree and endangering the welfare of a child. Following a hearing, County Court denieddefendant's suppression motion. During jury selection, defendant pleaded guilty to allfour counts of the indictment. County Court sentenced defendant to an aggregate prisonterm of 12 years and five years of postrelease supervision. Defendant appeals.
County Court did not err in denying defendant's motion to suppress his statements topolice and evidence obtained from his cell phone. Defendant's arguments are all based onhis [*2]assertion that the police unlawfully seized himwithout probable cause prior to his first arrest.[FN*] The arresting sergeant testified that the victim's father walked into the police station withher and informed the sergeant that defendant, an older man, had been text messaging thevictim. The father had impersonated the victim and arranged a meeting with the manbehind a bar at 11:00 p.m. that night. The sergeant did not have time before the arrangedmeeting to read the text messages, but the father stated that he had reviewed them. Fromwhat the father said regarding those messages, the sergeant was led to believe that themeeting "was going to be a sexual encounter" and the father "was very concerned thatthis guy was going to try to have sex with his daughter." When the sergeant arrived at themeeting place, he saw defendant—a person the sergeant recognized as a registeredsex offender—walking toward the bar whose parking lot was the meeting spot.Defendant stated that he was there to meet someone. The sergeant responded that theperson that defendant was meeting was probably too young for him, which defendantapparently did not deny. The sergeant handcuffed defendant and drove him to the policestation, removed the handcuffs, advised defendant of his Miranda rights,obtained a written statement, secured defendant's cell phone, and then arrested him.
Defendant was in custody when he was placed in handcuffs and brought to the policestation. The only question raised is whether the sergeant had probable cause to seize him.Police have probable cause to arrest an individual if, absent circumstances that wouldmaterially impeach the proffered information, an identified citizen provides informationaccusing that individual of committing a specific crime; such information ispresumptively reliable (see People v Bailey, 295 AD2d 758, 759 [2002], lvdenied 99 NY2d 533 [2002]; People v Bingham, 263 AD2d 611, 612[1999], lv denied 93 NY2d 1014 [1999]; People v Peterkin, 151 AD2d407, 407 [1989], affd 75 NY2d 985 [1990]; People v Gonzalez, 138AD2d 622, 623 [1988], lv denied 71 NY2d 1027 [1988]; see also Medina v City of NewYork, 102 AD3d 101, 103-104 [2012]; Guntlow v Barbera, 76 AD3d 760, 768 [2010], appealdismissed 15 NY3d 906 [2010]). Although the sergeant had not read the textmessages, the father—who was an identified citizen with no apparent reason tomake up these allegations—related that defendant had been sending messages toan underage girl and was going to meet her for "a sexual encounter." Part of thisinformation was confirmed when the sergeant found defendant at the designated meetingspot, he acknowledged that he was there to meet someone and did not deny that theperson was probably too young for him. Thus, the sergeant had probable cause to believethat defendant had committed the crime of endangering the welfare of a child, i.e., that he"knowingly act[ed] in a manner likely to be injurious to the physical, mental or moralwelfare of a child" (Penal Law § 260.10 [1]). Accordingly, as the police hadprobable cause to seize defendant and bring him to the station, County Court did not errin denying defendant's suppression motion.
The People concede that County Court improperly imposed a sentence of 3½ to7 years in prison for the charge of disseminating indecent material to a minor in the firstdegree, despite defendant not being classified as a second felony offender. We modifythe sentence on that conviction to 2
Defendant had previous out-of-state convictionsfor possessing child pornography and fondling a six-year-old child. He denied and madeexcuses regarding those convictions, as well as the instant charges. Defendant was onprobation for an unrelated crime when he attempted to meet the victim and his first arresthere occurred, and he was caught climbing into another young girl's window within daysof that arrest. Under the circumstances, we find no abuse of discretion or extraordinarycircumstances that would warrant disturbing the sentences imposed as harsh or excessive(see People v Brown, 96AD3d 1236, 1237 [2012]).
Rose, J.P., Lahtinen and Egan Jr., JJ., concur. Ordered that the judgment is modified,on the law, by reducing the sentence imposed on count 2 of the indictment to2
Footnote *: County Court lateracknowledged that it made factual misstatements in its written decision. When orallycorrecting its findings, the court made further errors. Our decision is based on the hearingtestimony and County Court's credibility determinations, not that court's factual findings.