| People v McKean |
| 2011 NY Slip Op 08169 [89 AD3d 866] |
| November 9, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamesMcKean, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Lori A. Alesio, Lois Cullen Valerio, RichardLongworth Hecht, and Laurie Sapakoff of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (DiBella, J.),rendered May 29, 2009, convicting him of endangering the welfare of a child and trespass, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of thatbranch of the defendant's omnibus motion which was to suppress his statements to law enforcementofficials.
Ordered that the judgment is affirmed.
The defendant's contention that the grand jury proceeding was defective is without merit. CPL210.35 (5) states that "[a] grand jury proceeding is defective within the meaning of paragraph (c) ofsubdivision one of section 210.20 when . . . [t]he proceeding . . . fails toconform to the requirements of article one hundred ninety to such degree that the integrity thereof isimpaired and prejudice to the defendant may result." Even if errors were made during the grand juryproceeding, the defendant does not contend on appeal that these errors created a possibility ofprejudice, and the record does not support such a contention (see People v Beckwith, 289AD2d 956, 956-957 [2001]; People v Troy, 209 AD2d 943 [1994]; People v Hyde,85 AD2d 745, 746 [1981]).
The hearing court properly denied that branch of the defendant's omnibus motion which was tosuppress his statements to law enforcement officials. "The credibility determinations of the SupremeCourt following a suppression hearing are entitled to great deference on appeal and [*2]will not be disturbed unless clearly unsupported by the record" (People v Whyte, 47 AD3d 852,852-853 [2008]; see People vJenneman, 37 AD3d 736, 737 [2007]). Here, the record supports the hearing court'sdetermination to credit the testimony of the police witnesses, which established that the defendant wasneither in custody nor interrogated when he made the inculpatory statements adduced at trial (seePeople v Huffman, 41 NY2d 29, 33-34 [1976]; People v Jenneman, 37 AD3d at 737;People v Clark, 172 AD2d 679 [1991]).
We reject the defendant's contention that the trial court erred in admitting certain testimonyregarding his behavior prior to his interaction with the complainant. "The challenged evidence did notconcern the type of illegal or immoral conduct which would deprive the defendant of a fair trial. In anyevent, even assuming that this evidence could be considered evidence of prior bad acts or unchargedcrimes, it was properly admitted to complete the narrative of events surrounding the charged crimes"and establish intent (People v Jenneman, 37 AD3d at 737-738 [citations and internal quotationmarks omitted]; see People v Green, 56AD3d 490 [2008]; People vTarver, 2 AD3d 968, 969 [2003]).
Upon the exercise of our independent factual review power (see CPL 470.15 [5]), we aresatisfied that the verdict of guilt on the counts charging endangering the welfare of a child and trespasswas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]; People v Otway, 71 AD3d 1052,1054-1055 [2010]; People v Sanderson,68 AD3d 1716, 1717-1718 [2009]).
Lastly, the defendant's claim that his alleged exclusion from sidebar bench conferences resulted in aviolation of his fundamental right to be present at all material stages of trial is meritless "where, as here,the record is simply insufficient to establish facts necessary to meet the defendant's burden of showingthat he was absent from a material stage of the trial" (People v Velasquez, 1 NY3d 44, 49 [2003]; see People v Carter, 44 AD3d 677,678 [2007]). Skelos, J.P., Hall, Lott and Roman, JJ., concur.