| People v Bradford |
| 2009 NY Slip Op 03321 [61 AD3d 1419] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Dana R.Bradford, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Elizabeth Clifford of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), renderedApril 7, 2005. The judgment convicted defendant, upon a jury verdict, of rape in the third degree(four counts) and endangering the welfare of a child (six counts).
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice and on the law by amending the orders of protection and asmodified the judgment is affirmed, and the matter is remitted to Monroe County Court forfurther proceedings in accordance with the following memorandum: On appeal from a judgmentconvicting him upon a jury verdict of, inter alia, four counts of rape in the third degree (PenalLaw § 130.25 [2]), defendant contends that County Court erred in refusing to suppressstatements that he made to the police as the fruit of an illegal arrest. We agree with defendantthat he was arrested without probable cause (see generally People v Carrasquillo, 54NY2d 248, 254 [1981]; People v Nicodemus, 247 AD2d 833, 835-836 [1998], lvdenied 92 NY2d 858 [1998]), and thus that his arrest was illegal. Nevertheless, we concludeon the record before us that defendant's statements "were sufficiently attenuated from the illegalarrest to be purged of the taint created by the illegality" (People v Russell, 269 AD2d771, 772 [2000]). The inculpatory statements in question were not made until several hours afterthe arrest, during which time defendant twice waived his Miranda rights (see Peoplev Conyers, 68 NY2d 982, 983-984 [1986]; People v Cooke, 299 AD2d 419, 420[2002], lv denied 99 NY2d 627 [2003]). We note in addition that defendant was advisedduring that time period, before he made the statements, that the victims of the crimes hadimplicated him (see Cooke, 299 AD2d at 420). We conclude that "the actions of thepolice were not so egregious as to warrant suppression" (Russell, 269 AD2d at 772).
Defendant further contends that reversal is required because he may have been convicted ofan unindicted rape. We note at the outset that defendant's failure to preserve that contention forour review is of no moment. Preservation is not required inasmuch as "[t]he right of an accusedto be tried and convicted of only those crimes and upon only those theories charged in theindictment is fundamental and nonwaivable" (People v Rubin, 101 AD2d 71, 77 [1984],lv denied 63 NY2d 711 [1984]; see People v Watkins, 300 AD2d 1070, 1071[2002], lv denied 99 NY2d 659 [2003]). Nevertheless, we reject that [*2]contention. Although the rape victim testified with respect to morethan four incidents involving defendant that may constitute the crime of rape in the third degree,the court's "charge to the jury eliminated any 'danger that the jury convicted defendant of anunindicted act' " (People v Gerstner, 270 AD2d 837, 838 [2000]; see People v Caballero, 23 AD3d1031, 1032 [2005], lv denied 6 NY3d 846 [2006]; cf. People v McNab, 167AD2d 858 [1990]). Although we agree with defendant that the court erred in refusing to striketestimony concerning uncharged acts of rape in the third degree by defendant (see generallyPeople v Ventimiglia, 52 NY2d 350, 359-360 [1981]), we conclude that the error is harmless(see People v Schrader, 251 AD2d 1032, 1033 [1998], lv denied 92 NY2d 882[1998]; see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).
We further agree with defendant that the court erred in setting the durations of the orders ofprotection without taking into account the jail time credit to which he is entitled (see People v Stone, 49 AD3d1314 [2008], lv denied 10 NY3d 965 [2008]; People v Fomby, 42 AD3d 894, 896 [2007]). Although defendantraises that contention for the first time on appeal and thus has failed to preserve it for our review(see People v Nieves, 2 NY3d310, 315-317 [2004]), we nonetheless exercise our power to review it as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). We therefore modify thejudgment by amending the orders of protection, and we remit the matter to County Court todetermine the jail time credit to which defendant is entitled and to specify in each order ofprotection an expiration date in accordance with CPL 530.13 (former [4]), the version of thestatute in effect when the judgment was rendered on April 7, 2005. Present—Hurlbutt,J.P., Centra, Peradotto, Green and Gorski, JJ.