| People v Fisher |
| 2015 NY Slip Op 01836 [126 AD3d 1048] |
| March 5, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRobert S. Fisher, Appellant. |
Stacey L. Gorman, Ballston Spa, for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Jason M. Carusone of counsel),for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered September 23, 2008, upon a verdict convicting defendant of the crimes ofcourse of sexual conduct against a child in the first degree, incest in the first degree, rapein the second degree, incest in the second degree, endangering the welfare of a child andsexual abuse in the second degree (two counts).
In April 2008, defendant was charged in a multi-count indictment with various sexcrimes stemming from his ongoing sexual relationship with victim A (born in 1995)between August 2007 and January 2008, as well as an encounter with victim B (also bornin 1995) that occurred in January 2008. Specifically, defendant was charged with courseof sexual conduct against a child in the first degree (victim A), incest in the first degree(victim A), rape in the second degree (victim A), incest in the second degree (victim A),endangering the welfare of a child (victim A) and two counts of sexual abuse in thesecond degree (victim B). In response to questioning by State Police, defendant gave adetailed written statement, wherein he recounted, among other things, the progression ofhis physical relationship with victim A—a person to whom defendant knew hewas related—from touching to oral sex to repeated acts of sexual intercourse overthe course of many months. Defendant's subsequent motion to suppress this statementwas denied, and the matter proceeded to trial. After hearing the testimony offered by,among others, victims A and B, the jury found defendant guilty of all charges. CountyCourt thereafter sentenced defendant to concurrent terms of imprisonment,including—with respect to defendant's [*2]conviction of course of sexual conduct against a child inthe first degree—20 years in prison followed by 20 years of postreleasesupervision. This appeal by defendant ensued.
Defendant initially contends that County Court erred in failing to suppress thewritten statement he gave to State Police investigators in January 2008. We disagree."The People bore the burden of proving the voluntariness of defendant's statement[ ]beyond a reasonable doubt, including that any custodial interrogation was preceded bythe administration and defendant's knowing waiver of his Miranda rights.Determining whether a statement is voluntary is a factual issue governed by the totalityof the circumstances [and] [t]he credibility assessments of the suppression court inmaking that determination are entitled to deference" (People v Mattis, 108 AD3d 872, 874 [2013], lvdenied 22 NY3d 957 [2013] [internal quotation marks and citations omitted]).
Here, the State Police investigator who ultimately took defendant's statement testifiedthat, prior to questioning defendant at the barracks, he advised defendant of hisMiranda rights; in response, defendant indicated that he understood his rights andwas willing to speak with the investigator. The investigator then questioned defendantfor approximately 2
Although defendant denied being apprised of his Miranda warnings,contended that the investigator had already prepared a written statement for him to signprior to any questioning taking place, insisted that he did not read the written statement,claimed that he was not paying attention when the investigator read portions of thestatement to him and testified that he signed/initialed the written statement only becausehe was instructed to do so, this conflicting testimony presented a credibility issue forCounty Court to resolve (seePeople v Marshall, 65 AD3d 710, 711 [2009], lv denied 13 NY3d 940[2010]). Notably, defendant's insistence that he was not involved in the preparation of hiswritten statement and did not pay any attention to the final product is belied by thestatement itself—a document that defendant signed four times, initialed no fewerthan 21 times and, as noted previously, made a correction thereto. Accordingly, wediscern no basis upon which to disturb County Court's ruling in this regard.
Defendant next contends that the verdict convicting him of each of the underlyingcrimes is against the weight of the evidence. Again, we do not agree. As a starting point,to the extent that the charged crimes contained specific age requirements for the victimsand/or defendant (see Penal Law §§ 130.30 [1]; 130.35 [4];130.50 [4]; 130.60 [2]; 130.75 [1] [b]; 255.26; 255.27), the information contained indefendant's redacted written statement, which was admitted into evidence at trial,together with the testimony of victim A, her mother and victim B, was sufficient tosatisfy the age elements embodied in the crimes at issue. Similarly, the evidence at trialestablished that defendant was aware that he was related to victim A to the degreerequired by the incest statutes (see Penal Law §§ 255.26,255.27).
With respect to the specific charges, victim A testified, in detail and at length, that[*3]defendant began having sex with her in late August2007 or early September 2007—a point in time when victim A was 12 years old.Victim A testified as to the progression of the relationship—from touching to oralsex to sexual intercourse—and described both the locations and the frequency withwhich such acts took place. Although noting that defendant had intercourse with her"basically almost every chance he got," victim A testified as to specific incidents of oralsex and/or sexual intercourse that occurred between late 2007 and early 2008, includingHalloween, Thanksgiving, Christmas Eve and her birthday. Victim A's mother confirmedthat victim A was with defendant on the holidays in question, and defendant's ownstatement reflects that he "had sex with [victim A] about 20 separate times" between latesummer and October 2007, in addition to one act of sexual intercourse in January 2008.Upon consideration of this evidence, and granting deference to the jury's credibilitydeterminations, we are satisfied that the jury accorded the evidence the weight that itdeserved. Accordingly, we find no basis upon which to disturb defendant's conviction asto the crimes charged with respect to victim A—specifically, course of sexualconduct against a child in the first degree, incest in the first degree, rape in the seconddegree, incest in the second degree and endangering the welfare of a child.
We reach a similar conclusion as to the two counts of sexual abuse in the seconddegree charged with respect to victim B, which required the People to prove thatdefendant engaged in sexual contact—defined as "any touching of the sexual orother intimate parts of a person for the purpose of gratifying sexual desire of either party"(Penal Law § 130.00 [3])—with victim B (see Penal Law§ 130.60 [2]). Both victim A and victim B recounted an incident thatoccurred during a sleepover with victim A in January 2008 wherein defendant expresseda desire to have a "threesome" with them. Victim B testified that she initially thought thatdefendant was kidding, but that defendant thereafter grabbed her between her legsstating, "[I'll] be getting some of that later." In an effort to stall for time, victim B tolddefendant that she would not do anything with him without a condom. Victim A, victimB and defendant then went to a local grocery store to make that purchase. Upon returningfrom the store, victim A, victim B and defendant proceeded to a bedroom in theresidence, at which time—victim B testified—defendant engaged in sexualcontact with her within the meaning of the subject statute. Crediting the testimonyoffered by victims A and B, as well as the admissions made by defendant in his writtenstatement, we are satisfied that the jury accorded such evidence the weight that itdeserved.
Defendant's remaining contentions do not warrant extended discussion. To the extentthat County Court erred in admitting into evidence reference to an uncharged act ofsexual intercourse that occurred with victim A in Saratoga County, in light of theoverwhelming evidence of defendant's guilt, we deem any error in this regard to beharmless (see People vArafet, 13 NY3d 460, 467 [2009]; People v Raucci, 109 AD3d 109, 120-121 [2013], lvdenied 22 NY3d 1158 [2014]). As for defendant's claim that he was denied the rightto counsel of his choosing, we cannot say that County Court abused its discretion indenying defendant's eve-of-trial request for an adjournment in order retain a newattorney. Nor do we find merit to defendant's ineffective assistance of counsel claim. Tothe extent that defendant faults trial counsel for failing to secure his testimony at thegrand jury proceeding, sufficiently confer with him prior to trial, adequately prepare forthe suppression hearing and/or engage in sufficient pretrial motion practice, these claimsinvolve matters outside of the record and, as such, are more properly the subject of a CPLarticle 440 motion (see People vGreen, 119 AD3d 23, 31 [2014], lv denied 23 NY3d 1062 [2014]; People v Toye, 107 AD3d1149, 1152 [2013], lv denied 22 NY3d 1091 [2014]; People v Stroman, 106 AD3d1268, 1271 [2013], lv denied 21 NY3d 1046 [2013]). As to the balance ofdefendant's claim, the record reflects that trial counsel "engaged in relevant motionpractice, presented appropriate opening and closing statements, effectivelycross-examined the People's witnesses and registered appropriate objections" (People v Cade, 110 AD3d1238, 1242 [2013], lv denied 22 NY3d 1155 [2014]). Hence, we aresatisfied that [*4]defendant received meaningfulrepresentation (see People v Green, 119 AD3d at 31; People v Cade, 110AD3d at 1242; People v Toye, 107 AD3d at 1152). Defendant's remainingarguments, including his assertion that the sentence imposed is harsh and excessive, havebeen examined and found to be lacking in merit.
McCarthy, J.P., Rose and Devine, JJ., concur. Ordered that the judgment isaffirmed.