| People v Kolupa |
| 2009 NY Slip Op 01039 [59 AD3d 1134] |
| February 11, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Shannon M.Kolupa, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered March30, 2006. The judgment convicted defendant, upon a jury verdict, of attempted rape in the firstdegree, sexual abuse in the first degree, criminal sexual act in the first degree, attempted sexualabuse in the first degree and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is modified as a matter of discretionin the interest of justice by directing that the sentences imposed on counts one through four ofthe indictment shall run concurrently with respect to each other and as modified the judgment isaffirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of,inter alia, criminal sexual act in the first degree (Penal Law § 130.50 [3]) and attemptedrape in the first degree (§§ 110.00, 130.35 [3]). Contrary to defendant's contention,the unsworn testimony of the seven-year-old victim was sufficiently corroborated by evidence ofdefendant's opportunity, the testimony concerning defendant's statements to the police and thetestimony of other witnesses (see generally People v Groff, 71 NY2d 101, 109-110[1987]). "Strict corroboration of every material element of the charged crime is not required, asthe purpose of corroboration is to ensure the trustworthiness of the unsworn testimony ratherthan [to] prove the charge itself" (People v Petrie, 3 AD3d 665, 667 [2004]; see Groff, 71NY2d at 108-110).
Contrary to the further contention of defendant, County Court properly determined that apolice officer's alleged promise to charge defendant with a misdemeanor, issue him anappearance ticket and release him did not render his statements to the police inadmissiblepursuant to CPL 60.45 (2) (b) (i). Inasmuch as some of defendant's inculpatory statements weremade before the alleged promise was given, we conclude that there is no risk that the promisecaused defendant to incriminate himself falsely (see generally People v Carrillo, 257AD2d 780, 782-783 [1999], lv denied 93 NY2d 967 [1999]). In any event, consideringthe totality of the circumstances in this case (see People v Anderson, 42 NY2d 35, 38[1977]), we conclude that the alleged promise that defendant would be charged with amisdemeanor, issued an appearance ticket and released is not one that created a substantial riskof false incrimination during the course of the two-hour interview with the police (see Peoplev Williamson, 245 AD2d 966, 967-968 [1997], lv denied 91 NY2d [*2]946 [1998]; People v Hamelinck, 222 AD2d 1024 [1995],lv denied 87 NY2d 921 [1996]; see also People v Alexander, 51 AD3d 1380, 1381-1382 [2008],lv denied 11 NY3d 733 [2008]).
Finally, we reject defendant's contention that the sentences imposed on the counts ofattempted rape in the first degree and sexual abuse in the first degree must run concurrently as amatter of law (see generally People vRosas, 8 NY3d 493, 496-497 [2007]; People v Laureano, 87 NY2d 640, 643[1996]). We conclude, however, that the imposition of consecutive sentences with respect tocounts one through four of the indictment renders the sentence unduly harsh and severe. Wetherefore modify the judgment as a matter of discretion in the interest of justice by directing thatthe sentences imposed on those counts shall run concurrently with respect to each other(see CPL 470.15 [6] [b]).
All concur except Martoche, J.P., and Centra, J., who dissent in part in accordance with thefollowing memorandum.
Martoche, J.P., and Centra, J. (dissenting in part). We respectfully dissent in part. In ourview, the evidence is legally insufficient to support the conviction of attempted rape in the firstdegree (Penal Law §§ 110.00, 130.35 [3]), sexual abuse in the first degree (§130.65 [3]) and criminal sexual act in the first degree (§ 130.50 [3]). We disagree with themajority that the unsworn testimony of the seven-year-old victim was sufficiently corroboratedby testimony concerning defendant's statements to the police and the testimony of otherwitnesses.
"The corroboration standard . . . requires proof of circumstances tending toprove the material facts of the crime and tending to connect the defendant to that crime"(People v Guerra, 178 AD2d 434, 434-435 [1991]; see generally People v Groff,71 NY2d 101, 109 [1987]). Here, however, the two physicians who examined the victim testifiedthat they found nothing of significance in their examination of the victim's genitals. Although thetestimony concerning defendant's statements to the police established that defendant admittedthat he exposed himself to the victim, there was no evidence that defendant admitted that hecommitted any other physical acts with respect to the victim. We thus conclude that defendant'stestimony tended to prove only the material facts of the lesser crimes of which defendant wasconvicted, attempted sexual abuse in the first degree (Penal Law §§ 110.00, 130.65[3]) and endangering the welfare of a child (§ 260.10 [1]), but failed to prove the materialfacts of the remaining crimes (see Guerra, 178 AD2d at 435). We therefore wouldmodify the judgment by reversing those parts convicting defendant of attempted rape in the firstdegree, sexual abuse in the first degree and criminal sexual act in the first degree and dismissingcounts one through three of the indictment. Present—Martoche, J.P., Smith, Centra,Peradotto and Pine, JJ.