| People v Childres |
| 2009 NY Slip Op 02014 [60 AD3d 1278] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Mia CarlChildres, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Kenneth R. Fisher, J.),rendered November 20, 2003. The judgment convicted defendant, upon a nonjury verdict, ofrape in the first degree, sodomy in the first degree, sexual abuse in the first degree, rape in thesecond degree and sodomy in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reducing the period of postrelease supervision imposed for sexual abuse in the first degree toa period of three years and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him following a nonjury trial of, interalia, rape in the first degree (Penal Law § 130.35 [1]) and sexual abuse in the first degree(§ 130.65 [1]), defendant contends that he was denied effective assistance of counsel. Wereject that contention inasmuch as defendant failed to meet his burden of demonstrating " 'theabsence of strategic or other legitimate explanations' for [defense] counsel's allegedshortcomings" (People v Benevento, 91 NY2d 708, 712 [1998]; see generally Peoplev Baldi, 54 NY2d 137, 147 [1981]). Defendant further contends that Supreme Court erred inrefusing to suppress his 2003 statement to the police because the failure of the police to preservethe card containing the Miranda warnings that were read to defendant resulted in apresumption that his statement was involuntary. We reject that contention. The court'sdetermination that the statement was voluntarily made "is entitled to great deference and will notbe disturbed where, as here, it is supported by the record" (People v Youngblood, 294AD2d 954, 955 [2002], lv denied 98 NY2d 704 [2002]; see generally People vProchilo, 41 NY2d 759, 761 [1977]). Contrary to the further contention of defendant withrespect to both his 1999 and 2003 statements, "[t]here is no Federal or State due processrequirement that interrogations and confessions be electronically recorded" (People vFalkenstein, 288 AD2d 922, 923 [2001], lv denied 97 NY2d 704 [2002]; seePeople v Dukes [appeal No. 1], 53 AD3d 1101 [2008], lv denied 11 NY3d 831[2008]; People v Davis, 48 AD3d1086, 1087-1088 [2008], lv denied 10 NY3d 861 [2008]).
Viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Although there were minorinconsistencies in the testimony of the victim concerning her statements to the police four years[*2]prior to the trial, it was for the court, as the trier of fact, todetermine issues of credibility, and we see no basis for disturbing its credibility determinations(see generally People v Kelley, 46AD3d 1329, 1330 [2007], lv denied 10 NY3d 813 [2008]). In any event, those"complained of inconsistencies did not relate to whether the alleged sexual conduct occurred"(People v Raymo, 19 AD3d727, 728 [2005], lv denied 5 NY3d 793 [2005]).
We agree with defendant, however, that the sentence imposed on the count of sexual abusein the first degree is illegal insofar as it includes a five-year period of postrelease supervision fora class D violent felony offense (see Penal Law § 70.45 [former (2)]). Wetherefore modify the judgment by reducing the period of postrelease supervision imposed forsexual abuse in the first degree to a period of three years, the maximum allowed (see People v Keith, 26 AD3d 879,880 [2006], lv denied 6 NY3d 835 [2006]).
Finally, defendant failed to preserve for our review his contention that the court erred insetting the duration of the order of protection (see People v Nieves, 2 NY3d 310, 315-317 [2004]), and wedecline to exercise our power to review that contention as a matter of discretion in the interest ofjustice (see People v Sterrett, 53AD3d 1098 [2008], lv denied 11 NY3d 858 [2008]). Present—Hurlbutt, J.P.,Smith, Fahey, Peradotto and Pine, JJ.