| People v Vieou |
| 2013 NY Slip Op 04056 [107 AD3d 1052] |
| June 6, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vFrancis H. Vieou, Appellant. |
—[*1] Mark D. Suben, District Attorney, Cortland (Christine M.R. Ferraro of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Cortland County (Ames,J.), rendered April 26, 2011, upon a verdict convicting defendant of the crimes of rape inthe second degree and endangering the welfare of a child.
In April 2010, a 14-year-old female informed the Cortland County Sheriff'sDepartment that she had sexual intercourse earlier that day with defendant, who was then41 years old. The next day, two officers went to defendant's home, where they informeddefendant about the victim's allegations. Defendant acknowledged that he had engaged insome of the alleged conduct. He was transported to the Sheriff's Department, receivedMiranda warnings, executed a waiver, and gave a written statement. A six-countindictment ensued charging defendant with rape in the second degree and endangeringthe welfare of a child occurring on three separate occasions—April 2010,September 2009 and August 2009. Defendant's motion to suppress his statement topolice was denied following a Huntley hearing. A jury acquitted him of the fourcounts arising from conduct alleged to have occurred in September 2009 and August2009, but found him guilty of one count of rape in the second degree and one count ofendangering the welfare of a child as a result of the April 2010 conduct. He wassentenced to concurrent prison terms of four years for rape and one year for endangeringthe welfare of a child, together with five years postrelease supervision. Defendantappeals.[*2]
County Court did not err in determining thatdefendant was not in custody when questioned by police in his home. "A suspect'scustodial status is a fact-driven determination that is largely dependent on thecircumstances that existed when the statements were made and focuses on 'the amount oftime the person spent with the police, whether his or her freedom of action wassignificantly restricted, the location of the questioning and the atmosphere under which itwas conducted, the person's degree of cooperation . . . and whether thequestioning was investigatory or accusatory in nature' " (People v McCoy, 89 AD3d1218, 1219 [2011], lv denied 18 NY3d 960 [2012], quoting People vHardy, 223 AD2d 839, 840 [1996]). Ultimately, "[t]he standard for assessing asuspect's custodial status is whether a reasonable person innocent of any wrongdoingwould have believed that he or she was not free to leave" (People v Paulman, 5 NY3d122, 129 [2005]; seePeople v Rhodes, 83 AD3d 1287, 1288 [2011]).
At the Huntley hearing, the two officers testified that they informeddefendant of the reason for their visit, were invited into his home, sat around a diningroom table and engaged in small talk about various topics. Defendant was not restrained,he was cooperative and the conversation was cordial, including when discussing thevictim's allegations. The questions regarding the victim were investigatory and notaccusatory in tone. After about 30 minutes to an hour and defendant's acknowledgmentof the veracity of some of the victim's claims, he was asked to accompany the officers tothe Sheriff's Department, he agreed to go in the officers' unmarked vehicle and he wasnot at any time placed in handcuffs. The record amply supports County Court'sdetermination that the People met their burden of proving that defendant'spre-Miranda statement at his home was not the result of a custodial interrogation(see People v Underdue, 89AD3d 1132, 1133 [2011], lv denied 19 NY3d 969 [2012]; People vFitzgerald, 257 AD2d 679, 680-681 [1999], lv denied 93 NY2d 899 [1999]).This renders academic defendant's further argument that his post-Miranda writtenstatement given at the Sheriff's Department was tainted because it was not sufficientlyattenuated from the earlier statement in his home (see People v Underdue, 89AD3d at 1133).
The voluntariness of defendant's statement was also challenged before the jury(see CPL 710.70 [3]; People v Johnson, 303 AD2d 903, 907 [2003],lv denied 100 NY2d 539 [2003]), and he contends on appeal that the jury'sdetermination on this issue was against the weight of the evidence. Upon weighing andconsidering the evidence, we are unpersuaded. Although one of the officers involved inthe investigation of defendant had retired and did not testify at trial, the testimony of theother officer who was present when defendant gave his statement provided sufficientproof under the circumstances to establish beyond a reasonable doubt the voluntarinessof defendant's statement (see generally People v Witherspoon, 66 NY2d 973, 974[1985]).
Peters, P.J., Rose and Garry, JJ., concur. Ordered that the judgment is affirmed.