| People v Brown |
| 2013 NY Slip Op 07595 [111 AD3d 1385] |
| November 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JohnBrown, Appellant. |
—[*1] Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Dennis S. Cohen, J.),rendered September 10, 2009. The judgment convicted defendant, upon a jury verdict, ofrape in the second degree, sexual abuse in the second degree and endangering the welfareof a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofrape in the second degree (Penal Law § 130.30 [1]), sexual abuse in the seconddegree (§ 130.60 [2]), and endangering the welfare of a child (§ 260.10 [1]),defendant contends that County Court erred in refusing to suppress the statements that hemade to the police. Defendant's specific contentions are that, contrary to the court'sconclusion, he was in custody, that the statements were the result of coercion andintimidation by the police sergeant who questioned him, and that he did not understandthe import of the Miranda warnings provided by the police sergeant. We rejectthose contentions.
"In determining whether a defendant was in custody for Miranda purposes,'[t]he test is not what the defendant thought, but rather what a reasonable [person],innocent of any crime, would have thought had he [or she] been in the defendant'sposition' " (People v Kelley,91 AD3d 1318, 1318 [2012], lv denied 19 NY3d 963 [2012], quotingPeople v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]).Here, the record establishes that defendant voluntarily drove himself to the police station,was not handcuffed, was permitted to leave the police station to smoke a cigarette, andwas not subjected to lengthy, coercive or accusatory questioning (see People v Towsley, 53AD3d 1083, 1084 [2008], lv denied 11 NY3d 795 [2008]; People v Duda, 45 AD3d1464, 1466 [2007], lv denied 10 NY3d 764 [2008]). Consequently, weconclude that defendant was not in custody. In any event, the police sergeant providedMiranda warnings at the start of the interview, prior to any statements beingmade by defendant.
We also reject defendant's contention that his statements were the result of policecoercion and intimidation. The record of the suppression hearing supports the court'sdetermination that the statements were not coerced, i.e., defendant received no promisesin exchange for making the statements and he was not threatened in any way, and "thecourt's [*2]determination is entitled to great deference"(People v Peay, 77 AD3d1309, 1310 [2010], lv denied 15 NY3d 955 [2010]; see People v Heary, 104 AD3d1208, 1210 [2013], lv denied 21 NY3d 943 [2013], reconsiderationdenied 21 NY3d 1016 [2013]; see generally People v Prochilo, 41 NY2d759, 761 [1977]). Contrary to defendant's further contention, the evidence introduced atthe suppression hearing fails to establish that he did not understand the import of theMiranda warnings. To the contrary, having reviewed the record of theHuntley hearing, we conclude that "defendant understood the Mirandawarnings and, with such understanding, freely chose to answer the questions asked by thepolice" (People v Benton, 158 AD2d 987, 987 [1990], lv denied 75NY2d 963 [1990]; see People v Young, 303 AD2d 952, 952 [2003]).
We reject defendant's further contention that the statements were not sufficientlycorroborated. "A person may not be convicted of any offense solely upon evidence of aconfession or admission made by him without additional proof that the offense chargedhas been committed" (CPL 60.50). "[T]he policy behind the statute is satisfied by theproduction of some [evidence], of whatever weight, that a crime was committed bysomeone" (People v Daniels, 37 NY2d 624, 629 [1975]; see People vBooden, 69 NY2d 185, 187-188 [1987]). Viewing the evidence in the light mostfavorable to the People (see People v Potter, 262 AD2d 1074, 1074 [1999];see generally People v Smith, 55 NY2d 945, 947 [1982]), we conclude that the13-year-old victim's testimony that defendant had sexual intercourse with her wassufficient to meet the corroboration requirement.
Defendant contends that the verdict is against the weight of the evidence because,inter alia, the jury acquitted him of certain additional crimes involving the same victim.That contention is actually a challenge to the verdict as repugnant, but defendant failed topreserve that challenge for our review inasmuch as he did not object to the verdict on thatground before the jury was discharged (see People v Alfaro, 66 NY2d 985, 987[1985]). We decline to exercise our power to review that contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). Viewing theevidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we otherwise reject defendant's contention that the verdictis against the weight of the evidence (see generally People v Bleakley, 69 NY2d490, 495 [1987]).
Defendant also failed to preserve for our review his contention that the court erred inpermitting the People to recall the victim to testify following the testimony of anotherwitness (see People v Hare,27 AD3d 1171, 1172 [2006], lv denied 6 NY3d 894 [2006]; People v Cunningham, 13AD3d 1118, 1119-1120 [2004], lv denied 4 NY3d 829 [2005]). In anyevent, we conclude that the court did not abuse its discretion in permitting the People torecall the victim as a witness (see People v Rostick, 244 AD2d 768, 768-769[1997], lv denied 91 NY2d 929 [1998]).
Defendant failed to preserve for our review his further contention that the sentenceimposed was a vindictive punishment for rejecting the plea offer and proceeding to trial(see People v Hurley, 75 NY2d 887, 888 [1990]). In any event, that contention iswithout merit. Defendant primarily relies upon the fact that a longer sentence wasimposed after trial, but "[i]t is well settled that [t]he mere fact that a sentence imposedafter trial is greater than that offered in connection with plea negotiations is not proofthat defendant was punished for asserting his right to trial" (People v Spencer, 108 AD3d1081, 1083 [2013] [internal quotation marks omitted]). Finally, the sentence is notunduly harsh or severe. Present—Smith, J.P., Peradotto, Carni, Valentino andWhalen, JJ.