| People v Berumen |
| 2007 NY Slip Op 09819 [46 AD3d 1019] |
| December 13, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Gustavo A.Berumen, Appellant. |
—[*1] Davis S. Hartnett, District Attorney, Cortland (Wendy L. Franklin of counsel), forrespondent.
Kane, J. Appeal from a judgment of the County Court of Cortland County (Ames, J.),rendered March 28, 2006, upon a verdict convicting defendant of the crimes of sodomy in thesecond degree and endangering the welfare of a child.
At the request of city police officers, defendant accompanied them to the police station. Afteran officer advised defendant of his Miranda rights and began questioning him, defendantoffered to take a polygraph examination. Arrangements were made and defendant accompaniedthe officers on the one-hour ride to a State Police barracks where the examination would beadministered. A State Police investigator read defendant his Miranda rights, administeredthe examination, and then began questioning him. The examination and questioning werevideotaped. During the questioning, after the investigator accused defendant of lying, defendantadmitted that he put his penis in the victim's mouth on one occasion but denied other sexualconduct.
Upon returning to the city police station, the officers again advised defendant of hisMiranda rights and began questioning him, culminating in a written statement in whichdefendant again admitted to one act of oral sex with the victim. A grand jury handed up a10-count indictment related to defendant's sexual conduct with the victim. After aHuntley hearing, County Court denied defendant's motion to suppress his oral and writtenstatements. Following a [*2]trial, where defendant's writtenstatement and a redacted version of the videotape were admitted into evidence, the jury acquitteddefendant of most of the charges, but convicted him of sodomy in the second degree andendangering the welfare of a child. Defendant appeals.
We affirm. Defendant was given Miranda warnings twice prior to his first statementand three times prior to his written statement, and he waived those rights each time. He wasprovided with food and beverages, was not handcuffed or locked in any room, and was notplaced under arrest until after he made his written statement. He freely accompanied the officersto the police station, he suggested the polygraph examination and he voluntarily made theone-hour trip to the State Police barracks. The police are permitted to lie or use some deceptivemethods in their questioning as long as "the deception was [not] so fundamentally unfair as todeny due process" (People v Tarsia, 50 NY2d 1, 11 [1980]). The limited use of thosetactics here was not so extensive as to induce a false confession or overcome defendant's will,which would render defendant's statements inadmissible (see People v Brown, 39 AD3d 886, 887 [2007], lv denied 9NY3d 873 [2007]; People v Becker, 288 AD2d 766, 768 [2001], lv denied 97NY2d 751 [2002]). In fact, the investigator did not lie about the polygraph examination'saccuracy, its admissibility at trial, or his interpretation of the results that defendant was lying(see People v Tarsia, 50 NY2d at 11; People v Miller, 220 AD2d 902, 903[1995], lv denied 88 NY2d 882 [1996]). As defendant's statements were madevoluntarily, after he was advised of and waived his rights and without any threats or promiseswhich would overcome his will, County Court properly denied defendant's suppression motion(see People v Sobchik, 228 AD2d 800, 802-803 [1996]; see also People v Lyons, 4 AD3d549, 552 [2004]; People v Ward, 241 AD2d 767, 769 [1997], lv denied 91NY2d 837 [1997]).
Mercure, J.P., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the judgment isaffirmed.