| People v Smielecki |
| 2010 NY Slip Op 06976 [77 AD3d 1420] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v William J.Smielecki, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), renderedJuly 22, 2008. The judgment convicted defendant, upon a jury verdict, of assault in the second degreeand endangering the welfare of a child.
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 of assault inthe second degree (Penal Law § 120.05 [9]) and endangering the welfare of a child (§260.10 [1]), arising out of an incident in which he fractured the arm of his girlfriend's three-week-olddaughter. We reject the contention of defendant that Supreme Court erred in refusing to suppress thestatements that he made to the police before he was advised of his Miranda rights. Althoughdefendant was at the police station when the statements were made, he was not in custody at that time,and the questioning was investigatory rather than accusatory in nature (see People v Nunez, 51 AD3d 1398,1400 [2008], lv denied 11 NY3d 792 [2008]). The mere fact that the police may havesuspected defendant of having caused the child's injuries prior to questioning him at the station does notcompel a finding that defendant was in custody (see People v Neil, 24 AD3d 893 [2005]). In our view, a reasonableperson, innocent of any crime, would not have thought he or she was in custody if placed in defendant'sposition (see People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851[1970]; People v Lunderman, 19 AD3d1067, 1068 [2005], lv denied 5 NY3d 830 [2005]).
Contrary to the further contention of defendant, his "admission of guilt in the parallel Family Courtproceeding was properly received in[ ] evidence against [him]" (People v Walden, 236 AD2d779, 779 [1997], lv denied 90 NY2d 865 [1997]; see Prince, Richardson onEvidence §§ 8-201, 8-215 [Farrell 11th ed]). Counsel for the petitioner in the FamilyCourt proceeding outlined the evidence against defendant, who, upon questioning by the court,indicated that he would not be able to dispute the allegations. Defendant was represented by counsel atthat time, and he indicated that he understood that his failure to dispute the evidence against him wouldbe tantamount to an admission.[*2]
We also reject the contention of defendant that the admissionshe made to the police were not sufficiently corroborated (see CPL 60.50; People v Harewood, 34 AD3d 1254,1255 [2006], lv denied 8 NY3d 846 [2007]). The medical evidence of the child's injuriesprovided sufficient assurance that defendant had not admitted to crimes where no crime had beencommitted (see People v Chico, 90 NY2d 585, 589-590 [1997]). In addition, defendant'sadmissions were sufficiently corroborated by the testimony of the child's mother, who left the childalone with defendant so that she could take a shower. According to the mother, the child appeared tobe fine when she got in the shower. When she got out of the shower, however, the child was screamingand crying. Defendant, who was also crying, explained that something was wrong with the child's arm,which was limp. The mother's testimony satisfies the minimal corroboration requirement of CPL 60.50that some "additional proof that the offense[s] charged [have] been committed" (see People vLipsky, 57 NY2d 560, 571 [1982], rearg denied 58 NY2d 824 [1983]; People v Lyons, 4 AD3d 549, 553[2004]). Finally, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342,349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Present—Centra, J.P., Peradotto, Carni,Lindley and Sconiers, JJ.