| People v Byron |
| 2011 NY Slip Op 04780 [85 AD3d 1323] |
| June 9, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Derrick R.Byron, Appellant. |
—[*1] Mark D. Suben, District Attorney, Cortland (Christopher I. Simser Sr. of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Cortland County (Sherman, J.),rendered May 4, 2010, convicting defendant following a nonjury trial of the crimes of sexualabuse in the first degree and endangering the welfare of a child.
In February 2009, the then four-year-old victim reported to her mother that defendant had"tickled [her] privates" while the victim was staying at her grandparents' residence. Defendantwas interviewed by police officers and admitted in a written statement to touching the victim'svaginal area both inside and outside of her clothing. He was then charged with sexual abuse inthe first degree and endangering the welfare of a child. Defendant subsequently moved tosuppress his written statement on the basis that it was not voluntary. Following a Huntleyhearing, County Court denied defendant's motion. Defendant was found guilty of both chargesafter a nonjury trial and was sentenced to an aggregate prison sentence of three years, followedby five years of postrelease supervision. Defendant now appeals and we affirm.
Defendant's contention that County Court erred in denying his motion to suppress his writtenstatement is without merit. Three witnesses testified at the Huntleyhearing—defendant and police officers David Guerrera and Richard Troyer. The testimonyof the officers established that defendant consented to being transported to the police station tobe interviewed, that Guerrera advised defendant of his Miranda rights prior tointerviewing him and that defendant [*2]signed a form indicatingthat he understood those rights. Guerrera further testified that defendant stated that he wanted tospeak to the police and that he did not want an attorney. According to the officers, the interviewlasted approximately two hours, during which time defendant was free to leave and made norequest to do so. After the interview, a statement was typed which defendant read and modified.Defendant ultimately read the final version of the statement incorporating his changes, initialedthe statement in several places and signed it. Defendant also wrote on the statement that he hadread it and that it was true.
Defendant's version of the events differed in several significant respects. In particular,defendant testified that he did not sign the Miranda certification form until after hesigned his written statement, and he asked to leave three times during the interview, but was toldthat he could not do so until he gave a statement. He further testified that he signed the statementbecause he wanted to go home, and he did not read it carefully or make any corrections to it.County Court clearly discredited this testimony. Based on the totality of the circumstances anddeferring to the court's credibility assessments, we find ample support in the record for the court'sdetermination that defendant's statement was voluntary, and we find no reason to disturb it (see People v Button, 56 AD3d1043, 1044 [2008], lv dismissed 12 NY3d 781 [2009]; People v Lind, 20 AD3d 765, 766[2005], lv denied 5 NY3d 830 [2005]; People v Meissler, 305 AD2d 724, 725[2003], lv denied 100 NY2d 644 [2003]).
Nor do we find merit to defendant's challenges to the sufficiency and weight of the evidence.The victim's mother testified that, the day after the sexual abuse occurred, the victim disclosed toher in detail what had transpired the previous night. The victim again recounted what hadoccurred to the police. The victim's trial testimony, although unsworn, was largely consistentwith what she told her mother and the police and with defendant's statement to the police, andwas further corroborated by her behavior following the incident. Moreover, her response toCounty Court's inquiry of her, prior to testifying, demonstrated that she was sufficientlyintelligent to give unsworn testimony. Under these circumstances, County Court's decision topermit such testimony was a proper exercise of its discretion and the testimony was sufficientlycorroborated to support defendant's convictions (see CPL 60.20 [2]; People vZuke, 304 AD2d 910, 911-912 [2003], lv denied 100 NY2d 601 [2003]). Likewise,defendant's confession was adequately corroborated by the victim's testimony, her consistentout-of-court statements and the testimony concerning her behavior following the incident(see CPL 60.50; People v Coleman, 42 NY2d 500, 506 [1977]; People vBitting, 224 AD2d 1012, 1013 [1996], lv denied 88 NY2d 845 [1996]; People vZerbst, 147 AD2d 844, 846 [1989], affd 74 NY2d 888 [1989]; People vPhilipp, 106 AD2d 681, 682 [1984]).
Additionally, it is undisputed that the victim was under the age of 11 at the time the abuseoccurred and defendant confessed to having touched her vaginal area both outside and inside herclothing. The victim also testified that defendant touched her inside her vagina and that it hurther. This evidence was sufficient to establish sexual contact (see People v Shook, 294AD2d 710, 711-712 [2002], lv denied 98 NY2d 702 [2002]), and defendant's sexualgratification can be inferred from evidence that he, a nonrelative, placed his finger in the victim'svagina (see People v King, 79AD3d 1277, 1279 [2010]; People vFuller, 50 AD3d 1171, 1174-1175 [2008], lv denied 11 NY3d 788 [2008];People v Watson, 281 AD2d 691, 697-698 [2001], lv denied 96 NY2d 925[2001]). Viewing the evidence in the light most favorable to the People (see People vCabey, 85 NY2d 417, 420 [1995]; People v Roberts, 63 AD3d 1294, 1296 [2009]) and giving themthe benefit of every favorable inference (see People v Bleakley, 69 NY2d 490, 495[1987]; People v Scanlon, 52 AD3d1035, 1038 [2008], lv denied 11 NY3d 741 [2008]), the evidence is [*3]legally sufficient to support the convictions (see Penal Law§ 130.00 [3]; § 130.65 [3]; § 260.10 [1]; People v Bleakley, 69 NY2dat 495; People v Maricevic, 52AD3d 1043, 1044 [2008], lv denied 11 NY3d 790 [2008]; People v Owens, 45 AD3d 1058,1059 [2007]).
Furthermore, notwithstanding defendant's trial testimony that his contact with the victim'svagina consisted of nothing more than harmless tickling, there was strong evidence establishingthat sexual contact occurred, and any minor inconsistencies between the victim's in-courttestimony and her out-of-court statements or other evidence in the record did not render hertestimony incredible as a matter of law (see People v Shook, 294 AD2d at 712). Even if adifferent outcome would not have been unreasonable, when we view the evidence in a neutrallight and accord deference to the jury's credibility determinations (see People v Bleakley,69 NY2d at 495; People v Owens, 45 AD3d at 1059; People v Davis, 260 AD2d726, 729 [1999], lv denied 93 NY2d 968 [1999]), we do not find the convictions to beagainst the weight of the evidence.
Defendant's remaining contentions, including that his sentence was harsh and excessive, havebeen reviewed and are rejected.
Mercure, J.P., Spain, Kavanagh and Garry, JJ., concur. Ordered that the judgment isaffirmed.