| People v Gelin |
| 2015 NY Slip Op 03860 [128 AD3d 717] |
| May 6, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Patrick Gelin, Appellant. |
John F. Ryan, White Plains, N.Y. (David B. Weisfuse of counsel), for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and Steven A.Bender of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the County Court, WestchesterCounty (Zambelli, J.), rendered February 5, 2013, convicting him of endangering thewelfare of a child (two counts), upon a jury verdict, and imposing sentence, and (2), ajudgment of the same court (Warhit, J.), also rendered February 5, 2013, convicting himof sexual abuse in the second degree (four counts), upon a jury verdict, and imposingsentence. The appeals bring up for review the denial, after a hearing (Zambelli, J.), ofthat branch of the defendant's omnibus motion which was to suppress his statements tolaw enforcement officials.
Ordered that the judgments are affirmed.
The defendant was accused, inter alia, of sexually abusing his 12-year-old daughterin the presence of his minor son. By Westchester County indictment No. 11-01658, thedefendant was charged with rape in first degree (two counts), incest in the first degree(two counts), sexual abuse in the second degree (five counts), and endangering thewelfare of a child (two counts).
The defendant's first trial ended with the defendant being found guilty of two countsof endangering the welfare of a child. The jury failed to reach a verdict with respect tothe remaining nine counts of the indictment and a mistrial was declared as to thosecounts. After a retrial on the remaining counts, the defendant was found guilty of fourcounts of sexual abuse in the second degree.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdicts of guilt were not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
Contrary to the defendant's contention, the County Court properly denied that branchof his omnibus motion which was to suppress his statements to law enforcementofficials. A review [*2]of the totality of the circumstances(see People v Mateo, 2 NY3d at 413; People v Anderson, 42 NY2d 35,38 [1977]) demonstrates that the defendant, who voluntarily accompanied the police tothe precinct, was not in custody until after he was informed of his Miranda rights(see Miranda v Arizona, 384 US 436 [1966]; People v Martin, 68 AD3d 1015 [2009]; People v Pegues, 59 AD3d570 [2009]; People v Ellerbe, 265 AD2d 569 [1999]; People vPetrovich, 202 AD2d 523, 524 [1994], affd 87 NY2d 961 [1996]), and hisstatements to the police, which were given after he was informed of, and waived, hisMiranda rights, were voluntarily made (see CPL 60.45 [1]; People vMateo, 2 NY3d at 414; People v Huntley, 15 NY2d 72 [1965]; People v Seabrooks, 82 AD3d1130, 1130-1131 [2011]; cf. People v Dunbar, 104 AD3d 198 [2013], affd 24NY3d 304 [2014]). Moreover, the defendant's contention that his confession to the policewas involuntary on the ground that it was induced by trickery is without merit, sincethere was no indication "that the deception was so fundamentally unfair as to deny dueprocess or that a promise or threat was made that could induce a false confession"(People v Tarsia, 50 NY2d 1, 11 [1980] [citations omitted]; see People v Jaeger, 96 AD3d1172, 1174 [2012]; Peoplev Gordon, 74 AD3d 1090 [2010]; People v Green, 73 AD3d 805 [2010]; People v Sanabria, 52 AD3d743 [2008]; People v Ingram, 208 AD2d 561 [1994]).
The trial court did not violate the constitutional prohibition against subjecting acriminal defendant to double jeopardy when, during the first trial, it initially decided notto instruct the jury that the allegations of corporal punishment could be considered as abasis for the two counts of endangering the welfare of a child, and then decided to givethat instruction after defense counsel mentioned the allegations during his summation. Averdict of acquittal cannot be reviewed without putting a defendant twice in jeopardy,and thereby violating the Constitution (see Martinez v Illinois, 572 US &mdash,&mdash, 134 S Ct 2070, 2075-2076 [2014]). However, there is no constitutionalimpediment to a court's power to modify its decisions, provided such a modification doesnot subject an individual to double jeopardy (see Matter of Lionel F., 76 NY2d747, 749 [1990]). In this case, as the counts of endangering the welfare of a child werealso predicated on allegations that the defendant sexually abused his daughter in his son'spresence, the trial court's initial decision not to charge the jury that it also could considerthe evidence of alleged corporal punishment as a basis for finding the defendant guilty ofthose counts was not tantamount to an acquittal of those charges (see Evans vMichigan, 568 US &mdash, &mdash, 133 S Ct 1069, 1074-1075 [2013]; Peoplev Lerner, 128 AD2d 641 [1987]). Accordingly, the trial court was not prohibited bydouble jeopardy principles from revisiting and modifying its initial determination.
The defendant's remaining contentions are without merit. Skelos, J.P., Dillon, Austinand Hinds-Radix, JJ., concur.
Motion by the respondent to dismiss the appeals from two judgments of the CountyCourt, Westchester County, both rendered February 5, 2013, on the ground that thedefendant has absconded and is no longer available to obey the mandate of the Court. Bydecision and order on motion of this Court dated August 20, 2014, the motion was heldin abeyance and referred to the panel of Justices hearing the appeals for determinationupon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the argument of the appeals, it is
Ordered that the motion is denied. Skelos, J.P., Dillon, Austin and Hinds-Radix, JJ.,concur.