| People v Cooke |
| 2014 NY Slip Op 05253 [119 AD3d 1399] |
| July 11, 2014 |
| Appellate Division, Fourth Department |
[*1]
| 1 The People of the State of New York, Respondent, vRobert J. Cooke, Appellant. |
Davison Law Office PLLC, Canandaigua (Mary P. Davison of counsel), fordefendant-appellant.
Robert J. Cooke, defendant-appellant pro se.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of counsel), forrespondent.
Appeal from a judgment of the Steuben County Court (Joseph W. Latham, J.),rendered December 7, 2011. The judgment convicted defendant, upon a jury verdict, ofcriminal sexual act in the first degree, sexual abuse in the first degree and endangeringthe welfare of a child (two counts).
It is hereby ordered that the judgment so appealed from is modified on the law and asa matter of discretion in the interest of justice by reversing that part convicting defendantof endangering the welfare of a child under count eight of the indictment, dismissing thatcount, and vacating the sentence imposed on that count, and by vacating that part of theorder of protection in favor of defendant's elder daughter, and as modified the judgmentis affirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a jurytrial, of criminal sexual act in the first degree (Penal Law § 130.50 [3]),sexual abuse in the first degree (§ 130.65 [3]), and two counts ofendangering the welfare of a child (§ 260.10 [1]), for crimes committedagainst his two daughters. Defendant contends that he was denied a fair trial because hewas restrained by a stun belt throughout the trial, and County Court made no finding offacts warranting the use of such restraint (see People v Buchanan, 13 NY3d 1, 3 [2009]). We note,however, that defendant expressly consented to wearing the stun belt without the courtinquiring into the necessity for its use, and thus he has waived his contention concerningthe stun belt (see generallyPeople v Schrock, 108 AD3d 1221, 1224-1225 [2013], lv denied 22NY3d 998 [2013]; People vJohnson, 38 AD3d 1327, 1328 [2007], lv denied 9 NY3d 866[2007]).
We reject defendant's contention that the evidence at trial rendered duplicitous thecharge of sexual abuse in the first degree under count five of the indictment. Althoughthe victim of that crime testified to separate acts, each of which could constitute thatcrime, we conclude that the verdict sheet, along with "the court's charge to the juryeliminated any danger that the jury convicted defendant of an unindicted act" (People v Bradford, 61 AD3d1419, 1421 [2009], affd 15 NY3d 329 [2010] [internal quotation marksomitted]). Contrary to defendant's contention, the court properly admitted in evidence therecording of a telephone conversation between defendant and [*2]his estranged wife, despite brief inaudible portions therein,inasmuch as the recording as a whole is "sufficiently audible and intelligible" (Peoplev Martino, 244 AD2d 875, 875 [1997], lv denied 92 NY2d 1035 [1998],reconsideration denied 93 NY2d 855 [1998]). Contrary to defendant's furthercontention, the court properly exercised its discretion in permitting the jury, afterappropriate instructions, to use a transcript of the recording as an aid while listening to it(see id.).
We agree with defendant that the evidence is legally insufficient to support theconviction of endangering the welfare of a child under count eight of the indictment,which concerns only his elder daughter (see generally People v Danielson, 9 NY3d 342, 349[2007]), and we therefore modify the judgment accordingly. We note that, althoughdefendant failed to preserve for our review his challenge to the order of protectionconcerning the inclusion of the elder daughter, in light of our determination with respectto count eight of the indictment, we exercise our power to review that challenge as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Inasmuchas defendant's elder daughter was an alleged victim of only the crime charged in counteight of the indictment, that part of the order of protection issued in favor of thatdaughter must be vacated (see CPL 530.12 [5]; People v Raduns, 70 AD3d1355, 1355 [2010], lv denied 14 NY3d 891 [2010], reconsiderationdenied 15 NY3d 808 [2010]), and we therefore further modify the judgmentaccordingly. With respect to that part of the order of protection in favor of defendant'syounger daughter, defendant failed to preserve for our review his contention that theexpiration date was improperly calculated and must be amended. In any event, thatcontention is without merit. The court properly included the period of postreleasesupervision when calculating the maximum expiration date of the "determinate sentenceof imprisonment actually imposed" (CPL 530.12 [5] [A] [ii]; see People v Williams, 19NY3d 100, 101-102 [2012]).
We have examined defendant's contention in his pro se supplemental brief andconclude that it does not require reversal or modification of the judgment.
Finally, the sentence is not unduly harsh or severe.
All concur except Fahey, J., who concurs in the result in the followingmemorandum.
Fahey, J. (concurring). I concur in the result on the constraint of People v Schrock (108 AD3d1221 [2013], lv denied 22 NY3d 998 [2013]). Although this Court has ruledto the contrary, I continue to maintain that the application of a stun belt to a defendantwithout knowledge or input of the trial court is a mode of proceedings error, i.e., anunwaivable flaw (see id. at 1226-1227 [Fahey, J., dissenting]; see also Peoplev Patterson, 39 NY2d 288, 295 [1976], affd 432 US 197 [1977]), and that wemust not countenance the usurpation of a court's fundamental obligation to determinewhether a stun belt is necessary (see People v Buchanan, 13 NY3d 1, 4 [2009]). Here, thedecision to apply the stun belt to defendant at the outset of the trial was not made byCounty Court, and I reemphasize my view that courts, not non-judicial personnel,are to control the courtroom and thus must determine whether to apply a stun belt to adefendant. Given my continuing view that the application of a stun belt to adefendant—in the absence of judicial findings on the record that such isnecessary—is a mode of proceedings error and thus unwaivable (seePatterson, 39 NY2d at 295; see also Buchanan, 13 NY3d at 4), and given thefact that defendant herein wore a stun belt from the beginning of the trial, I see no needto review defendant's contention that he did not knowingly, intelligently and voluntarilywaive inquiry by the court during the middle of the trial as to the necessity of the stunbelt. Present—Centra, J.P., Fahey, Peradotto, Lindley and Valentino, JJ.