| People v Ogburn |
| 2007 NY Slip Op 09818 [46 AD3d 1018] |
| December 13, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Ronald A.Ogburn, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Washington County (Berke, J.),rendered March 25, 2005, convicting defendant upon his plea of guilty of the crimes of sodomyin the first degree (two counts) and sexual abuse in the first degree (two counts).
Defendant was indicted on two counts of sodomy in the first degree and two counts of sexualabuse in the first degree after admitting that he had engaged in sexual contact with the theneight-year-old female victim. When County Court denied defendant's motion to suppress therecording of a telephone conversation that he had with the victim and a written statement that hegave to police, he pleaded guilty to the four counts of the indictment. Defendant was thensentenced to agreed-upon terms of 15 years on each count of sodomy and seven years on eachcount of sexual abuse, all to run concurrently.
Defendant appeals, contending that the recording of his incriminating telephone conversationshould have been suppressed because, by placing the call from New York to Vermont, where hewas then residing, the police violated the laws of Vermont by failing to obtain a warrant beforerecording his conversation. Without deciding whether Vermont law would preclude use of therecording (see State v Geraw, 173 Vt 350, 358-359, 795 A2d 1219, 1225-1226 [2002]),we conclude that its admissibility raises procedural and evidentiary issues that are governed bythe laws of the forum (see People v Johnson, 303 AD2d 903, 904 [2003], lv [*2]denied 100 NY2d 539 [2003]; People v Benson, 88AD2d 229, 231 [1982]). Inasmuch as the police had the permission of the victim and her motherto monitor and record the victim's conversation with defendant, there was no violation of NewYork law (see Penal Law § 250.00 [1]; People v Lasher, 58 NY2d 962, 963[1983]; People v Carney, 23 AD3d772, 773 [2005]).
Nor did County Court err by denying suppression of the statements that defendant later madeto a State Police investigator. Even assuming, as defendant contends, that he was placed incustody immediately upon his return to New York and then transported to the police barracks in apolice vehicle, there is no claim or evidence that he made any relevant statements until after hewas given Miranda warnings at the barracks. Also, the hearing testimony of theinterrogating officer—that he administered the warnings before questioningdefendant—is undisputed. Since there was no interrogation by police prior to theMiranda warnings and defendant neither requested an attorney nor refused to speak withpolice after such warnings, we see no reason to reject County Court's finding that his writtenstatement was admissible (see People v Mateo, 2 NY3d 383, 413-414 [2004], certdenied 542 US 946 [2004]; People vDavis, 18 AD3d 1016, 1017 [2005], lv denied 5 NY3d 805 [2005]).
Defendant's argument that his sentence was harsh and excessive is equally unavailing (see People v Qasem, 39 AD3d960, 961 [2007]).
Mercure, J.P., Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the judgment isaffirmed.