| People v Hughes |
| 2013 NY Slip Op 08778 [112 AD3d 1380] |
| December 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vDonald Hughes, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.),rendered February 29, 2012. The judgment convicted defendant, upon a jury verdict, ofattempted criminal sexual act in the first degree, sexual abuse in the first degree (threecounts) and course of sexual conduct against a child in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reducing the period of postrelease supervision imposed on the first count ofthe indictment to a period of 15 years and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of one count each of attempted criminal sexual act in the first degree (Penal Law§§ 110.00, 130.50 [4]) and course of sexual conduct against a child in thesecond degree (§ 130.80 [1] [b]), and three counts of sexual abuse in the firstdegree (§ 130.65 [3]). Defendant contends that County Court erred in refusing tosuppress his statement to the police on the ground that he gave the statementinvoluntarily. We reject that contention. A statement "is 'involuntarily made' when it isobtained by [the police] by means of any promise or statement of fact which creates asubstantial risk that the defendant might falsely incriminate himself" (People vMateo, 2 NY3d 383, 413 [2004], cert denied 542 US 946 [2004]). "Todetermine voluntariness, courts review all of the surrounding circumstances to seewhether the defendant's will has been overborne" (id.; see People v Collins, 106AD3d 1544, 1545 [2013], lv denied 21 NY3d 1072 [2013]).
Here, the evidence at the Huntley hearing, including the videotapedinterrogations, establishes that defendant's statement was voluntarily made and thatcoercive police activity did not occur (see Mateo, 2 NY3d at 414). The fact thatdefendant was told that he failed a polygraph examination did not render the statementinvoluntary (see People vEllis, 73 AD3d 1433, 1434 [2010], lv denied 15 NY3d 851 [2010];People v Melendez, 149 AD2d 918, 918-919 [1989]). Defendant's claim that hewas under duress and confused because of an illness is not supported by the evidence atthe Huntley hearing. In arguing otherwise, defendant improperly relies on histestimony at trial (see People v McCurty [appeal No. 2], 60 AD3d 1406, 1407[2009], lv denied 12 NY3d 856 [2009]).
We conclude that the sentence is illegal insofar as it imposes a 20-year period of[*2]postrelease supervision for attempted criminal sexualact in the first degree (see Penal Law § 70.45 [2-a] [e]). " 'Although [that]issue was not raised before the [sentencing] court or on appeal, we cannot allow an[illegal] sentence to stand' " (People v Davis, 37 AD3d 1179, 1180 [2007], lvdenied 8 NY3d 983 [2007]). We therefore modify the judgment by reducing theperiod of postrelease supervision on the first count of the indictment to a period of 15years. The sentence as modified is not unduly harsh or severe. Present—Scudder,P.J., Centra, Carni, Sconiers and Whalen, JJ.