| People v Bradberry |
| 2015 NY Slip Op 06609 [131 AD3d 800] |
| August 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v James D. Bradberry, Appellant. |
Kathryn Friedman, Buffalo, for defendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski,A.J.), rendered September 8, 2011. The judgment convicted defendant, upon a nonjuryverdict, of course of sexual conduct against a child in the first degree (two counts) andincest in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him after a nonjurytrial of two counts of course of sexual conduct against a child in the first degree (PenalLaw § 130.75) as a lesser included offense of predatory sexual assaultagainst a child (§ 130.96) and one count of incest in the second degree(§ 255.26). We reject defendant's contention that Supreme Court erred inrefusing to dismiss the indictment based on its lack of specificity with respect to the timeframes alleged in the two counts of predatory sexual assault against a child. It is wellsettled that the crime of predatory sexual assault against a child "is a continuing offenseto which 'the usual requirements of specificity with respect to time do notapply' " (People vMuhina, 66 AD3d 1397, 1398 [2009], lv denied 13 NY3d 909 [2009];see People v Colf, 286 AD2d 888, 888-889 [2001], lv denied 97 NY2d655 [2001]). Here, the time periods of 7� months and one year alleged in the indictmentwere "sufficient to give defendant adequate notice of the charges to enable him toprepare a defense, to ensure that the crimes for which he was tried were in fact the crimeswith which he was charged, and 'to protect [his] right not to be twice placed in jeopardyfor the same conduct' " (People v McLoud, 291 AD2d 867, 868 [2002],lv denied 98 NY2d 678 [2002]).
We reject defendant's further contention that the court erred in refusing to suppressstatements that he made during a police-monitored telephone conversation with thevictim. There is no merit to his contention that the statements were admitted in violationof CPLR 4506 (1). It is well established that one of the parties to a telephoneconversation may consent to the wiretapping or recording of the conversation (seePeople v Phillips, 55 AD2d 661, 661 [1976], lv denied 41 NY2d 868 [1977],citing United States v White, 401 US 745 [1971], reh denied 402 US 990[1971]; cf. Pica v Pica, 70 AD2d 931, 931-932 [1979]), and here the victim gaveher consent. Defendant failed to preserve for our review his contention that the victim, asa minor, could not consent to the recording of her own conversations (see generally People v Furlong,4 AD3d 839, 840 [2004], lv denied 2 NY3d 739 [2004]). We note in anyevent that the victim's mother consented to the recording, and we conclude that the"vicarious consent" exemption applies under the circumstances presented such that theadmission of the subject recording was not barred by CPLR 4506 (see People v Badalamenti, 124AD3d 672, 674 [2015], lv granted 25 NY3d 949 [2015]; People vHills, 176 AD2d 375, 375 [1991]; People v Bastian, 125 AD2d 909, 909-910[1986], lv denied 69 NY2d 824 [1987]). Also contrary to defendant's contention,his statements in the controlled telephone call were not inadmissible pursuant to CPL60.45. Even assuming, arguendo, that the victim was acting as an agent of the policewhen she telephoned defendant, the calls were recorded with the victim's consent (see People v Taplin, 1 AD3d1044, 1045 [2003], lv denied 1 NY3d 635 [2004]), and "the victim did notmake a threat that would create a substantial risk that defendant might falsely incriminatehimself" (People v Stroman, 286 AD2d [*2]974,975 [2001], lv denied 97 NY2d 688 [2001]; see Taplin, 1 AD3d at 1045).We reject defendant's further contention that the controlled telephone call constituted anunconstitutionally deceptive police tactic. "Deceptive police stratagems in securing astatement 'need not result in involuntariness without some showing that the deceptionwas so fundamentally unfair as to deny due process or that a promise or threat was madethat could induce a false confession' " (People v Dishaw, 30 AD3d 689, 690 [2006], lv denied7 NY3d 787 [2006], quoting People v Tarsia, 50 NY2d 1, 11 [1980]), andthere was no such showing here.
We reject defendant's further contention that the court erred in permitting theprosecutor to elicit testimony concerning the fact that defendant was incarcerated at aparticular point in time. Such evidence was inextricably interwoven with and provided arelevant temporal reference for one of the crimes charged in the indictment (seePeople v Vails, 43 NY2d 364, 368 [1977]; People v Gantz, 104 AD2d 692,692-693 [1984]).
Contrary to defendant's contention, we conclude that the conviction is supported bylegally sufficient evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]; People v Lashway,112 AD3d 1222, 1224-1225 [2013]). We reject defendant's further contention thathis conviction of incest was in violation of Penal Law § 130.75 (2), whichprovides that "[a] person may not be subsequently prosecuted for any other sexualoffense involving the same victim unless the other charged offense occurred outside thetime period charged under this section." The statute prohibits only a "subsequent"prosecution and not, as here, a simultaneous prosecution (see People v Vanlare, 77 AD3d1313, 1313-1314 [2010], lv denied 15 NY3d 956 [2010]; see also People v Harris, 32Misc 3d 479, 489-490 [2011], affd 98 AD3d 420 [2012]).
Finally, contrary to defendant's contention, the court properly allowed the People'sexpert to testify regarding child sexual abuse accommodation syndrome and delayeddisclosure of sexual abuse (seePeople v Williams, 20 NY3d 579, 583-584 [2013]; People v Black, 124 AD3d1365, 1366-1367 [2015]). Present—Scudder, P.J., Smith, Carni, Lindley andDeJoseph, JJ.