| People v Kaye |
| 2016 NY Slip Op 01697 [137 AD3d 938] |
| March 9, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jeffrey Kaye, Appellant. |
Lynn W. L. Fahey, New York, NY (De Nice Powell of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and SethM. Lieberman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Gary, J.), rendered March 21, 2013, convicting him of course of sexual conduct againsta child in the second degree, sexual abuse in the first degree (four counts), and sexualabuse in the third degree, upon a jury verdict, and sentencing him to consecutivedeterminate terms of imprisonment of seven years on the conviction of course of sexualconduct against a child in the second degree, seven years on each conviction of sexualabuse in the first degree, and 90 days on the conviction of sexual abuse in the thirddegree, followed by periods of postrelease supervision. The appeal brings up for reviewthe denial, after a hearing, of that branch of the defendant's omnibus motion which wasto suppress his statements to law enforcement officials.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by providing that the sentences imposed on the convictions of sexual abuse in thefirst degree under counts two and three of the indictment for acts occurring on January22, 2011, shall run concurrently with each other and consecutively to the sentencesimposed on the convictions under the remaining counts of the indictment; as so modified,the judgment is affirmed.
The Supreme Court did not err in denying, after a hearing, that branch of thedefendant's omnibus motion which was to suppress his statements to law enforcementofficials. At a hearing to suppress statements made to law enforcement officials, thePeople have the burden of demonstrating, beyond a reasonable doubt, that thedefendant's statements were voluntary (see People v Thomas, 22 NY3d 629, 641 [2014]; People v Guilford, 21 NY3d205, 208 [2013]). "To do that, they must show that the statements were not productsof coercion, either physical or psychological" (People v Thomas, 22 NY3d at641). Here, the People proved, at the hearing, that the defendant knowingly andvoluntarily waived his Miranda rights (Miranda v Arizona, 384 US 436[1966]; see People vKithcart, 85 AD3d 1558, 1559 [2011]; People v Drumm, 15 AD3d 910 [2005]). The People alsoproved that the statements were made voluntarily and were not the product of coercion(see People v Kithcart, 85 AD3d at 1559; People v Caballero, 23 AD3d 1031, 1032 [2005]; see also People v Moses, 112AD3d 447, 448 [2013];People v Vieou, 107 AD3d 1052, 1053-1054 [2013]).
The Supreme Court did not err in denying the defendant's motion to reopen thesuppression hearing, as the defendant failed to set forth a bona fide factual predicateshowing that [*2]a proposed witness possessed materialevidence as to the voluntariness of the statements (see People v Whaul, 63 AD3d 1182, 1183 [2009]; People v Fowler, 61 AD3d698 [2009]; People v Caballero, 23 AD3d at 1032).
Under the circumstances of this case, the Supreme Court did not err in denying thedefendant's application to present expert testimony on the subject of false confessions (see People v Bedessie, 19NY3d 147, 161 [2012]; People v Joubert, 125 AD3d 686 [2015]; People v Rosario, 100 AD3d660, 661 [2012]; People vMutterperl, 97 AD3d 699, 700 [2012]).
The Supreme Court did not err in denying the defendant's motion to sever certaincounts from the remainder of the indictment (see CPL 200.20 [2] [c]; People v Haywood, 124 AD3d798, 800-801 [2015]; People v Martinez, 69 AD3d 958, 959 [2010]; People vCox, 298 AD2d 461 [2002]). However, the court should have charged the jury thatevidence of guilt as to one incident should not be considered as evidence of guilt as tothe other incidents (see People v Graham, 196 AD2d 552 [1993]; see also People v Caparella, 83AD3d 730 [2011]). Nevertheless, such error was harmless, as there wasoverwhelming evidence of guilt, and no significant probability that the error affected theverdict (see People v Crimmins, 36 NY2d 230 [1975]).
The defendant failed to preserve for appellate review his contention that counts twoand three of the indictment were multiplicitous (see CPL 470.05 [2]). However,we reach this issue in the exercise of our interest of justice jurisdiction and modify thejudgment so as to provide that the sentences imposed on the convictions under countstwo and three shall run concurrently with each other, because the offenses charged inthose counts were "committed through a single act" (Penal Law § 70.25 [2];People v Laureano, 87 NY2d 640, 643 [1996]; People v Grant, 123 AD3d942, 944 [2014]). Rivera, J.P., Balkin, Cohen and Barros, JJ., concur.