| People v Button |
| 2008 NY Slip Op 09294 [56 AD3d 1043] |
| November 26, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Gary J. ButtonJr., Appellant. |
—[*1] Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Chenango County (Sullivan, J.),rendered September 25, 2006, upon a verdict convicting defendant of the crimes of rape in thesecond degree, endangering the welfare of a child and sexual abuse in the second degree.
In July 2005, defendant, who was 40 years old, allegedly fondled and then had sexualintercourse with a 13-year-old victim. The victim was staying at defendant's home visiting adaughter of defendant's girlfriend. After the incident, defendant allegedly threatened her withharm if she ever told anybody. The victim nevertheless eventually reported the incident in lateNovember 2005 to a school counselor, who contacted police. Defendant initially denied theincident, but he soon provided police with a signed statement acknowledging that he had touchedthe victim's breast and vagina and then had sexual intercourse with her, although he attempted tocast her as the aggressor. He was indicted for rape in the second degree, endangering the welfareof a child and sexual abuse in the second degree. His motion to suppress his confession wasdenied following a Huntley hearing. A jury found him guilty of all the counts and he wassubsequently sentenced to 1 to 3 years in prison on the rape count, with concurrent 90-daysentences on the other two counts. Defendant appeals.
Defendant argues that his confession should have been suppressed. Determining whether astatement is voluntary is a factual issue for the suppression court, dependent on the totality of thecircumstances (see People vPerrineau, 52 AD3d 1056, 1057 [2008]; People v [*2]Davis, 18 AD3d 1016,1017 [2005], lv denied 5 NY3d 805 [2005]). The credibility determinations of thesuppression court receive deference and will not be disturbed if supported by the record (see People v Kuklinski, 24 AD3d1036, 1036 [2005], lvs denied 7 NY3d 758, 814 [2006]). Two individuals testified atthe Huntley hearing, the detective who took defendant's statement and defendant. Thedetective testified that he went to defendant's residence and asked him to accompany him to theSheriff's Department, which defendant did freely, and he was fully apprised both orally and inwriting of his Miranda rights before questioning commenced. Although defendantinitially denied sexual activity with the victim, he eventually acknowledged his actions. Thedetective typed a two-page statement in the form of his questions followed by defendant'sanswers, which defendant reviewed and signed. Defendant, in his testimony, contended that thedetective told him at the beginning of the interview that he had forfeited his right to a lawyer, hestated that he only skimmed the statement, and he asserted that he was pressured to sign thestatement. In determining that defendant's statement was voluntary, County Court found thedetective's testimony credible and defendant's testimony not credible. Those findings were wellwithin its discretion and are fully supported by the record.
The fact that the detective, when asked at the Huntley hearing whether he typeddefendant's statement "verbatim," responded that he "may have missed a word here or there" doesnot, as asserted by defendant, render the statement fatally flawed. The detective testified thatdefendant could see the computer screen as he typed each response by defendant and that, aftereach response, the detective then read what he had typed back to defendant so that defendantcould correct errors or add thereto. When the entire statement was typed, the detective printed itand gave it to defendant to read for any corrections or additions. After this review of the entirestatement, defendant signed it. These procedures sufficiently ensured the accuracy of thestatement (cf. People v Armlin, 281 AD2d 818, 818-819 [2001], lv denied 96NY2d 898 [2001]).
County Court interjected questions at the Huntley hearing and defendant argues thatthis constituted reversible error. This argument is meritless. The disputed questions occurred at apretrial hearing and not before a jury (see People v McRae, 284 AD2d 657, 659 [2001],lv denied 96 NY2d 921 [2001]), and, in any event, were aimed at clarifying issues andexpediting the hearing (see People v Yut Wai Tom, 53 NY2d 44, 57 [1981]).
Defendant asserts several arguments regarding jury selection, none of which has merit. Whilesome jurors gave initial responses that were not clear regarding their ability to be impartial, thosewho were permitted to remain on the jury had responded to follow-up inquiries with unequivocalassurances of impartiality (see People vDi Napoli, 28 AD3d 1013, 1014 [2006], lv denied 7 NY3d 812 [2006]; cf. People v McLean, 24 AD3d1110, 1111 [2005]). Moreover, the record does not establish nor does defendant contend thathe eventually exercised all of his peremptory challenges (see People v Nicholas, 98NY2d 749, 752 [2002]; People vFaulkner, 36 AD3d 1071, 1073 [2007]. Nothing in County Court's questioning of andbrief conversations with the various jurors constituted reversible error.
Defendant contends that the victim's testimony was insufficient to corroborate his confession."The corroboration requirement (see CPL 60.50) is met by some proof, of whateverweight, that the offense charged has in fact been committed by someone and it need not establishguilt or corroborate every detail of the confession" (People v Cole, 24 AD3d 1021, 1024-1025 [2005], lvdenied 6 NY3d 832 [2006] [internal quotation marks and citations omitted]). Here, thevictim was sworn as a witness and her responses to County Court's questions established her ascompetent to testify (see People v Christie, 241 AD2d 699, 700 [1997], lv denied90 NY2d [*3]938 [1997]). While there were some discrepanciesbetween the young victim's grand jury testimony and her trial testimony, these were explored oncross-examination and created credibility questions for the jury (see People v Wagner,178 AD2d 679, 680 [1991]). Her testimony regarding defendant's conduct was clearly sufficientto corroborate his confession.
During her interview with police when reporting this incident, the victim stated that she hadpreviously been subjected to "a bad touch" by two other individuals, both of whom had beenarrested. Defendant requested to question the victim at trial about these incidents to show that sheused reports of sex abuse as an act of revenge. County Court denied the request. There was nooffer of proof indicating these prior incidents were false. Indeed, defendant's offer of proof didnot "demonstrate either the falsity of the prior [incidents] or that [they were] suggestive of apattern that cast doubt on the validity of, or bore a significant probative relation to, the instantcharges" (People v Lane, 47 AD3d1125, 1128 [2008], lv denied 10 NY3d 866 [2008] [internal quotation marks andcitation omitted]). Defendant has asserted a totally different ground on appeal as a basis forquestioning the victim about such incidents, but that ground was not preserved for review and, inany event, lacks merit.
The remaining issues have been considered and found unpersuasive.
Peters, J.P., Rose, Kane and Malone Jr., JJ., concur. Ordered that the judgment is affirmed.