| People v Planty |
| 2017 NY Slip Op 07650 [155 AD3d 1130] |
| November 2, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Ralph E.Planty, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), for appellant.
Mary E. Rain, District Attorney, Canton (Hannah E.C. Moore, New York ProsecutorsTraining Institute, Inc., Albany, of counsel), for respondent.
Garry, J.P. Appeal from a judgment of the County Court of St. Lawrence County (Richards,J.), rendered February 8, 2016, upon a verdict convicting defendant of the crimes of sexual abusein the first degree (two counts) and criminal sexual act in the first degree.
Defendant was charged with two counts of sexual abuse in the first degree and one count ofcriminal sexual act in the first degree after he engaged in sexual conduct with a 12-year-oldvictim. County Court denied defendant's motion to suppress his statements to a policeinvestigator. Following a jury trial, defendant was convicted as charged and sentenced to anaggregate prison term of 15 years followed by 15 years of postrelease supervision. Defendantappeals.
We find no merit in defendant's contention that his convictions on all three counts were notsupported by legally sufficient evidence and were against the weight of the evidence because thePeople failed to prove his age, an element of the crimes. The victim's mother testified that shehad known defendant for many years, that defendant was older than she was, and that she was 40years old at the time of the trial. This testimony, together with the jury's opportunity to observedefendant in person, "provided a legally sufficient basis for the jury to find that defendant was atleast 18 years old" for purposes of his conviction for criminal sexual act in the first degree andover the age of 21 for purposes of his convictions for sexual abuse in the first degree (People v Kittles, 23 AD3d 775,776 [2005], lv denied 6 NY3d 755 [2005]; see Penal Law§§ 130.50 [4]; 130.65 [4]; People v Thornton, 141 AD3d 936, 937 n [2016], lv denied28 NY3d 1151 [2017]). Deferring to the jury's credibility assessments, we cannot say that theverdict was against the weight of the evidence (see People v Stone, 133 AD3d 982, 982-983 [2015]).
Defendant next challenges the legal sufficiency and weight of the evidence supporting thefinding that he engaged in oral sexual conduct with the victim (see Penal Law§ 130.50 [4]). This contention is unpreserved, as it was not specifically raised indefendant's trial motion to dismiss (seePeople v Novak, 148 AD3d 1352, 1353 [2017], lv denied 29 NY3d 1084[2017]). However, "in conducting our weight of the evidence review, we necessarily considerwhether all of the elements of the charged crimes were proven beyond a reasonable doubt" (People v Thorpe, 141 AD3d 927,928 [2016], lv denied 28 NY3d 1031 [2016]).
The victim testified that when she was 12 years old, she felt ill one morning and stayed homefrom school. She and defendant were alone in the house, and defendant asked about her illness.She told him that her chest hurt because it was congested, and defendant began to rub her breastsunderneath her bra, including her nipples. The victim did not ask him to stop because she "wasscared and very nervous and confused." Defendant then asked if he could rub her feet, and sheagreed. However, he then moved his hand up her inner thigh, touched what she referred to as her"vagina" with his fingers, and then pulled her shorts and underwear aside and touched her vaginawith his tongue. The victim stated that she began coughing to get away from defendant and wentto her room. He followed her, apologized and left. The victim called her mother, asked her tocome home and, upon her arrival, told her what had happened. The victim's mother testified thatthe victim told her that defendant had sexual contact with her and "just crumbled into the kitchenfloor."
A State Police investigator testified that, later that day, he met with defendant, who told theinvestigator that he had touched the victim's breasts underneath her clothing and had "massaged"her body, including her inner thighs and her pubic hair. He claimed that this conduct was part ofa therapeutic massage, but acknowledged that he was not a masseur. He denied penetrating thevictim's vagina but admitted that he had touched her vagina and her pubic hair with his hand andfingers. He denied that he had touched the victim's vagina with his tongue or mouth, but statedthat he had "blown" or "breathed heavy" on the victim's inner thigh. The jury was entitled tocredit the victim's testimony regarding defendant's oral sexual conduct despite defendant's denial,and we find that the verdict was not against the weight of the evidence (see People v Monroe, 134 AD3d1138, 1139-1140 [2015]; People vArtis, 90 AD3d 1240, 1240 [2011], lv denied 18 NY3d 955 [2012]).
Defendant next asserts that County Court erred in denying his motion to suppress hisstatements to the investigator on the ground that defendant's waiver of his Miranda rightswas not intelligent, voluntary and knowing. The investigator testified at the suppression hearingthat he and another officer approached defendant while he was playing golf; the investigator waswearing plain clothes, and the other officer was in uniform. They asked defendant if he wouldaccompany them to the station, and he agreed to do so. The investigator asked if defendant wouldprefer to ride in the officers' marked police car, and defendant accepted a ride to the station. Hewas not placed in handcuffs during the one- or two-minute trip. The ensuing interview, whichwas not recorded, took place in the investigator's office. According to the investigator, defendantsat in the seat nearest to the closed door and accepted a bottle of water before the investigatorread him his Miranda rights. He then acknowledged that he understood these rights andagreed to speak with the investigator. The investigator stated that defendant did not ask to leave,refuse to answer questions or ask for an attorney during the conversation, which lasted about 30minutes. Defendant initially agreed to the investigator's request for a written statement andinitialed his Miranda rights on a printed form after the investigator reread them to him.However, defendant then refused to sign the form and asked for the questioning to end, at whichpoint the investigator placed him under arrest. Defendant told the investigator that he hadconsumed some alcohol that day and had taken some pain medication for a sore leg, but did notspecify how much. The investigator testified that he was experienced in recognizing signs that aperson was under the influence of various substances and that defendant did not seem to beintoxicated or impaired.
After considering the totality of these circumstances, including "the location, length andatmosphere of the questioning, whether police significantly restricted defendant's freedom ofaction, the degree of defendant's cooperation, and whether the questioning was accusatory orinvestigatory" (People v Pagan, 97AD3d 963, 966 [2012], lv denied 20 NY3d 934 [2012]), we agree with County Courtthat the People established that an innocent person would not have believed that he or she was incustody during the interview and, thus, defendant's statements were not made during a custodialinterrogation (see People v Yukl, 25 NY2d 585, 591-592 [1969], cert denied 400US 851 [1970]; People v Eriksen,145 AD3d 1110, 1112 [2016], lv denied 28 NY3d 1183 [2017]; People v Henry, 114 AD3d 1025,1027 [2014], lv dismissed 22 NY3d 1199 [2014]). Accordingly, defendant's suppressionmotion was properly denied.[FN1]
Defendant's contention that he was denied a fair trial by improper prosecutorial commentsduring summation is unpreserved, as his counsel failed to make timely objections (see People v Rivera, 124 AD3d1070, 1074-1075 [2015], lv denied 26 NY3d 971 [2015]), and we decline to takecorrective action in the interest of justice. Defendant's related claim of ineffective assistance ofcounsel arising from the failure to preserve this issue is without merit, as the challenged remarksconstituted fair comment on the evidence, and any related objections would have been unlikely tosucceed (see People v Johnson, 151AD3d 1462, 1466 [2017]; People vScippio, 144 AD3d 1184, 1187 [2016], lv denied 28 NY3d 1150 [2017]).
Defendant's remaining ineffective assistance claims are likewise unavailing. Defendant didnot establish the absence of a strategic explanation for his counsel's alleged failure to conductfurther investigation to determine whether defendant or another individual was the source ofsaliva from an unknown male donor that, according to a serology report, was found on thevictim's underwear (see People vWelch, 137 AD3d 1313, 1314-1315 [2016], lv denied 27 NY3d 1141 [2016]).Notably, defense counsel advised County Court at the outset of the trial that he and defendanthad discussed the possibility of requesting an adjournment for further investigation of this issue,and that defendant had rejected this option and instead wanted to proceed with the trial asscheduled. Defendant confirmed on the record that he wished to go forward without additionalinvestigation.
Defendant next challenges his counsel's alleged failure to challenge the investigator'scredibility by pointing out a purported inconsistency between his testimony before the grand juryand at trial regarding one of defendant's admissions. The record—which does not includethe grand jury minutes—reveals that the investigator's trial testimony on this point wasentirely consistent with the People's CPL 710.30 notice, which the investigator signed before hetestified before the grand jury. Moreover, after reviewing the grand jury minutes, County Courtstated that the investigator's grand jury testimony about this admission corroborated the victim'sassertions.[FN2] Defensecounsel challenged the investigator's credibility during cross-examination by focusing on theinvestigator's alleged inexperience and flawed interviewing technique. Defendant did not provethat there was no strategic explanation for counsel's election to limit his challenges in thismanner rather than eliciting additional, potentially damaging testimony from the investigatorabout defendant's admissions of sexual contact with the victim (see generally People vBenevento, 91 NY2d 708, 712-713 [1998]).
Defendant's final claim of ineffective assistance—that his counsel failed to move todismiss the indictment on statutory speedy trial grounds despite a lapse of more than six monthsbetween the commencement of the action and the People's declaration ofreadiness—cannot be resolved on this record. Notably, defense counsel did not fail toaddress the statutory speedy trial issue. Rather, before beginning to select the jury, counselspecifically raised the issue by acknowledging his obligation to raise any valid speedy trialclaims, stating that he believed that the People had complied with their obligations pursuant toCPL 30.30 and making an ultimately unsuccessful claim that a constitutional violation hadoccurred. No further discussion of this issue occurred. The record does not contain sufficientinformation to permit us to determine whether counsel's belief regarding the People's statutorycompliance was correct. Thus, the claim that defendant was deprived of effective assistance onthis ground would more properly be raised in a CPL article 440 motion (see People v Joaquin, 150 AD3d618, 619-620 [2017], lv denied 29 NY3d 1128 [2017]; People v Burch, 97 AD3d 987, 990[2012], lv denied 19 NY3d 1101 [2012]; see also People v Youngs, 101 AD3d 1589, 1589 [2012], lvdenied 20 NY3d 1105 [2013]).
Defendant's contention that his sentence was a punishment for his rejection of a plea bargainthat offered him a shorter prison term is without merit, as a mere disparity between a plea offerand a sentence does not establish that the sentence was retaliatory where, as here, there is noother record support for that claim (see People v Pena, 50 NY2d 400, 411-412 [1980],cert denied 449 US 1087 [1981]; People v Nichol, 121 AD3d 1174, 1178 [2014], lv denied25 NY3d 1205 [2015]). Considering the nature of defendant's crime and his failure to acceptresponsibility for his actions, we perceive no extraordinary circumstances or abuse of discretionwarranting a reduction of the sentence in the interest of justice (see People v St. Ives, 145 AD3d1185, 1188 [2016], lv denied 29 NY3d 1036 [2017]; People v VanDeusen, 129 AD3d1325, 1327 [2015], lv denied 26 NY3d 972 [2015]; People v Lancaster, 121 AD3d1301, 1304 [2014], lv denied 24 NY3d 1121 [2015]).
Egan Jr., Lynch, Aarons and Pritzker, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:Although the warnings wereunnecessary, the record further establishes that defendant freely and voluntarily waived his rightsafter the warnings were given (seePeople v Dale, 115 AD3d 1002, 1003 [2014]).
Footnote 2:The record thus provides nosupport for defendant's assertion that, in permitting the investigator to testify about the admissionin question, the People obtained defendant's conviction in reliance upon evidence that they knewto be false.