| People v Sanderson |
| 2009 NY Slip Op 09803 [68 AD3d 1716] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Joseph F.Sanderson, Appellant. |
—[*1] Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), renderedSeptember 10, 2007. The judgment convicted defendant, upon a jury verdict, of criminal sexualact in the first degree (two counts), sexual abuse in the first degree (two counts), andendangering the welfare of a child (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict oftwo counts each of criminal sexual act in the first degree (Penal Law § 130.50 [3]), sexualabuse in the first degree (§ 130.65 [3]), and endangering the welfare of a child (§260.10 [1]). We conclude that County Court properly denied the motion of defendant to suppresshis statement to the police. "A statement is not involuntary unless [a] defendant's will has beenoverborne so that the statement was not the product of essentially free and unconstrained choice"(People v Richardson, 202 AD2d 958, 958 [1994], lv denied 83 NY2d 914[1994]). The evidence at the Huntley hearing establishes that defendant voluntarilyarranged to go to the police station to speak with an investigator about the allegations againsthim. Defendant and the investigator met in an unsecured office and spoke for approximately 15to 20 minutes and, at the conclusion of their meeting, defendant left the station with his wife.Thus, "[t]he circumstances of the [meeting] were noncustodial and nonthreatening" (id.at 959; see People v Borden, 39AD3d 1242 [2007], lv denied 9 NY3d 873, 959 [2007]).
Defendant's further contention that the court erred in failing to charge the jury on the issue ofthe voluntariness of defendant's statement is unpreserved for our review (see CPL 470.05[2]). Although defendant testified during the trial that his statement was involuntary (seeCPL 710.70 [3]), he did not object when the statement was admitted in evidence, he failed torequest a charge on the voluntariness of the statement, and he did not object to the charge asgiven (see People v Cefaro, 23 NY2d 283, 288-289 [1968]; People v Congelosi,266 AD2d 930, 930-931 [1999], lv denied 95 NY2d 794 [2000]). We decline to exerciseour power to review defendant's contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
Defendant also failed to preserve for our review his contention that the conduct of a jurordeprived him of the right to a fair trial and an impartial jury, inasmuch as defendant did notobject [*2]to the court's inquiry of that juror, seek to dischargethe juror, or move for a mistrial on that ground (see People v Wright, 16 AD3d 1113 [2005], lv denied 4NY3d 857 [2005]). In any event, " 'there is no basis to conclude that the juror in question shouldhave been discharged as grossly unqualified' " (id. at 1114; see CPL 270.35 [1];People v Buchholz, 23 AD3d1093, 1094 [2005], lv denied 6 NY3d 846 [2006]).
We further conclude that, contrary to defendant's contention, the evidence is legallysufficient to support the conviction of endangering the welfare of a child with respect to the olderof the two victims. Although the jury found defendant not guilty of any sexual misconductinvolving that victim, Penal Law § 260.10 (1) is "broadly written and imposes criminalsanction for the mere 'likelihood' of harm" (People v Johnson, 95 NY2d 368, 372[2000]). Here, viewing the facts in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), we conclude that a rational jury could have found thatdefendant "knowingly act[ed] in a manner likely to be injurious to the physical, mental or moralwelfare of [the] child" (Penal Law § 260.10 [1]), based on testimony that, inter alia,defendant attempted to kiss the victim while he was alone with her.
Moreover, viewing the evidence in light of the elements of the crimes as charged to the jury(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 an acquittalwould not have been unreasonable in light of the fact that the credibility of one of the victimswas challenged at trial and defendant recanted his prior confession (see generallyDanielson, 9 NY3d at 349), we afford " 'deference to the jury's superior opportunity toassess the witnesses' credibility' " (People v Marshall, 65 AD3d 710, 712 [2009]), and we concludethat the jury did not fail to give the evidence the weight it should be accorded (see generallyBleakley, 69 NY2d at 495).
Finally, although defendant had no prior criminal history, we conclude that the sentence isnot unduly harsh or severe, particularly in view of the nature of the crimes, the ages of thevictims, and the failure of defendant to accept responsibility for his actions.
We have considered defendant's remaining contentions and conclude that they are withoutmerit. Present—Hurlbutt, J.P., Peradotto, Carni, Pine and Gorski, JJ.