| People v Walker |
| 2011 NY Slip Op 06747 [87 AD3d 1352] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v GarrettWalker, 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 (John L. Michalski, A.J.),rendered August 5, 2010. The judgment convicted defendant, upon a jury verdict, of sexual abusein the first degree and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, following a jury trial, of sexualabuse in the first degree (Penal Law § 130.65 [3]) and endangering the welfare of a child(§ 260.10 [1]), defendant contends that Supreme Court erred in refusing to suppress bothinitial oral statements and subsequent written statements that he made to the police. We rejectthat contention. With respect to the oral statements, we conclude that the court properlydetermined that defendant was not in custody at the time he made those statements (seegenerally People v Morales, 65 NY2d 997, 998 [1985]). Indeed, the record of thesuppression hearing establishes that a reasonable person, innocent of any crime, would not havebelieved that he or she was in custody during that time, given the circumstances of the initialinterrogation (see generally People v Yukl, 25 NY2d 585, 589 [1969], cert denied400 US 851 [1970]; People vAndrews, 13 AD3d 1143, 1144 [2004]).
Nor is there merit to defendant's contention that the Miranda warnings administeredprior to his subsequent written statements were ineffective because his interrogation constituted acontinuous chain of events. Given our agreement with the court that the initial oral statements tothe police were not the subject of custodial interrogation, it cannot be said that the subsequentwritten statements were the result of a continuation of "custodial" interrogation.
We further conclude that the court did not err in refusing defendant's request to allowdefendant to present the testimony of a false confessions expert. It is well established that theadmissibility of expert testimony is addressed primarily to the sound discretion of the trial court(see People v Cronin, 60 NY2d 430, 433 [1983]), and here we conclude that the courtproperly determined that the expert did not possess a professional or technical knowledge thatwas beyond the ken of the average juror (see People v Hicks, 2 NY3d 750 [2004]). Finally, we conclude thatthe court properly denied defendant's motion for a subpoena duces tecum seeking the victim'scounseling records. The reason proferred by defendant for the motion was speculative, andthus[*2]"the quest for [the file's] contents [was] merely adesperate grasping at a straw" (People v Gissendanner, 48 NY2d 543, 550 [1979]).Present—Smith, J.P., Centra, Carni, Green and Martoche, JJ.