| People v Flowers |
| 2014 NY Slip Op 08170 [122 AD3d 1396] |
| November 21, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vFrank L. Flowers, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), renderedJune 13, 2012. The judgment convicted defendant, upon a jury verdict, of sexual abuse inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofsexual abuse in the first degree (Penal Law § 130.65 [3]), defendantcontends that he was denied his right to be present during a material stage of the trial. Wereject that contention. "Defendant concedes that the pretrial conference [was] held todiscuss a possible plea bargain, and thus his presence was not required" (People vDaugherty, 289 AD2d 1029, 1030 [2001]; see People v Elliot, 299 AD2d731, 733-734 [2002]).
Defendant further contends that a police detective continued to question him after heinvoked his right to remain silent, and that County Court therefore erred in refusing tosuppress the video recording of his interrogation. We also reject that contention.
" 'It is well settled . . . that, in order to terminate questioning,the assertion by a defendant of his right to remain silent must be unequivocal andunqualified' " (People vZacher, 97 AD3d 1101, 1101 [2012], lv denied 20 NY3d 1015 [2013]).The issue whether such a "request was 'unequivocal is a mixed question of law and factthat must be determined with reference to the circumstances surrounding the request[,]including the defendant's demeanor, manner of expression and the particular wordsfound to have been used by the defendant' " (id., quoting People vGlover, 87 NY2d 838, 839 [1995]). Here, we agree with the People that defendant"did not clearly communicate a desire to cease all questioning indefinitely" (People v Caruso, 34 AD3d860, 863 [2006], lv denied 8 NY3d 879 [2007]). Rather, he merely indicatedthat he did not want to discuss certain topics broached by the detective, which does notconstitute an unequivocal assertion of the right to remain silent (see People vMorton, 231 AD2d 927, 928 [1996], lv denied 89 NY2d 944 [1997]; seealso People v Allen, 147 AD2d 968, 968 [1989], lv denied 73 NY2d 1010[1989], reconsideration denied 74 NY2d 660 [1989]), especially in light of hiscontinued participation in the conversation. In any event, we conclude that any error inadmitting the challenged statements is harmless (see generally People v Clyde, 18 NY3d 145, 153-154[2011], cert denied 566 US &mdash, 132 S Ct 1921 [2012]; People vCrimmins, 36 NY2d 230, 237 [1975]).
Defendant failed to request a jury charge on the voluntariness of his statements anddid not object to the court's failure to give such a charge, and he thus failed to preservefor our review his contention that the court erred in failing to do so (see CPL470.05 [2]; People v Burch, 256 AD2d 1233, 1233 [1998], lv denied 93NY2d 871 [1999]). We decline to exercise our power to review that contention as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Contrary to defendant's further contention, the court did not err in admittingphotographs of the victim's injured vagina in evidence. "[P]hotographs are admissible ifthey tend 'to prove or [*2]disprove a disputed or materialissue, to illustrate or elucidate other relevant evidence, or to corroborate or disprovesome other evidence offered or to be offered' " (People v Wood, 79NY2d 958, 960 [1992]). Here, defendant was initially charged with predatory sexualassault against a child, which, insofar as relevant here, required that the People establishthat he "commit[ed] the crime of rape in the first degree" (Penal Law§ 130.96). That crime required that the People prove that defendant"engage[d] in sexual intercourse with another person . . . [w]ho is less thaneleven years old" (§ 130.35 [3]), and sexual intercourse "has its ordinarymeaning and occurs upon any penetration, however slight" (§ 130.00 [1]).Thus, inasmuch as the photographs were "probative on the issue of penetration,corroborated the infant victim's . . . testimony, and illustrated the medicaltestimony" (People v Stebbins, 280 AD2d 990, 990 [2001], lv denied 96NY2d 925 [2001]), there was no error in their admission.
We reject defendant's additional contention that the court abused its discretion inadjudicating him a persistent felony offender and in imposing a life sentence (see People v Smart, 100 AD3d1473, 1475 [2012], affd 23 NY3d 213 [2014]; People v McCullen, 63 AD3d1708, 1709 [2009], lv denied 13 NY3d 747 [2009]). The sentence is notunduly harsh or severe. Present—Smith, J.P., Peradotto, Valentino and DeJoseph,JJ.