| People v Vazquez |
| 2016 NY Slip Op 08401 [145 AD3d 1268] |
| December 15, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Juanito Vazquez, Appellant. |
Francisco P. Berry, Ithaca, for appellant.
Kirk O. Martin, District Attorney, Owego (Palmer J. Pelella of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Tioga County (Keene,J.), rendered February 21, 2014, upon a verdict convicting defendant of the crimes ofrape in the first degree and endangering the welfare of a child.
Defendant was indicted for the crimes of rape in the first degree, criminal sexual actin the first degree and endangering the welfare of a child. Following a jury trial,defendant was found guilty of rape in the first degree and endangering the welfare of achild, but the jury could not reach a unanimous verdict on the count of criminal sexualact in the first degree, and, prior to sentencing, the court dismissed that count of theindictment. Defendant's motion to set aside the verdict was denied and he was sentencedto a prison term of seven years with 10 years of postrelease supervision. Defendant nowappeals. We affirm.
Defendant initially contends that County Court's pretrial Huntley ruling,which denied his motion to suppress incriminating statements that he made to aninvestigator of the Tioga County Sheriff's Department, was in error because defendantdid not knowingly and intelligently waive his Miranda rights. Where "a defendanthas been advised of his [or her] Miranda rights and within minutes thereafterwillingly answers questions during interrogation, 'no other indication prior to thecommencement of interrogation is necessary to support a conclusion that the defendantimplicitly waived those rights' " (People v Goncalves, 288 AD2d 883,884 [2001], lv denied 97 NY2d 729 [2002], quoting People v Sirno, 76NY2d 967, 968 [1990]). The testimony at the Huntley hearing shows thatdefendant agreed to accompany the investigator to the Sheriff's Department to beinterviewed. Defendant testified that his requests for a lawyer [*2]were ignored, he was not given Miranda warningsat any point and he was not asked to sign a form waiving his Miranda rights.Defendant also testified that he had learned English from watching television. In contrastto defendant's version of the interview, the investigator testified that he read defendanthis Miranda rights at the Sheriff's Department using a standard form, and, whiledefendant did not want to sign the form, he indicated that he understood what had beenread to him and subsequently stated, "I will talk to you." The investigator also testifiedthat defendant never asked for a lawyer and that, while the interview was progressing, heprepared a written statement based on defendant's statements—detailing thatdefendant had engaged in sexual intercourse with the victim a number of times in thevictim's bed—and that defendant freely and voluntarily signed it.
Although defendant's version of the events differed from that provided by theinvestigator, County Court found the testimony of the investigator to be credible and thatno language barrier prevented defendant from voluntarily waiving his Mirandarights and making his written statement. "Determining whether a statement is voluntary isa factual issue governed by the totality of the circumstances[,] and the credibilityassessments of the suppression court in making that determination are entitled todeference" (People v Mattis,108 AD3d 872, 874 [2013] [internal quotation marks, brackets and citationsomitted], lv denied 22 NY3d 957 [2013]; see People v Hunter, 270 AD2d712, 713 [2000]). The court determined that defendant's claims that he did not receiveMiranda warnings and that the investigator ignored his request for counsel werenot credible. Since County Court "had the advantage of observing the demeanor of thewitnesses" (People v Hunter, 270 AD2d at 713), its factual determinations" 'are entitled to great weight and will not be disturbed unless clearlyerroneous' " (People vComfort, 6 AD3d 871, 873 [2004], quoting People v Burns, 281 AD2d704, 705 [2001], lv denied 96 NY2d 826 [2001]). On the record before us, wefind that County Court's pretrial Huntley ruling denying defendant's motion tosuppress his written statement is supported by the record (see People v Comfort,6 AD3d at 873).
Defendant also claims that County Court erred in denying his motion to set aside theverdict because the court gave an improper Allen charge. "[A] court may give adeadlock charge that encourages a verdict after the jurors have expressed that they are atan impasse, so long as the charge does not coerce them to reach a particular verdict" (People v Guerrier, 46 AD3d937, 938 [2007], lv denied 9 NY3d 1034 [2008]). Here, during jurydeliberations, the jury informed County Court that, while it was able to reach a verdict onthe count of endangering the welfare of a child, it could not reach a unanimous verdict onthe counts of rape in the first degree or criminal sexual act in the first degree. The courtconfirmed the verdict on the one count, and, upon agreement by both parties, gave thejury an Allen charge. The court read a standard Allen charge to the juryand, at the end of the charge, added: "I would like you to deliberate the case a little bitfurther. We are not going to have you come back here tomorrow. If you can't reach adecision today, then we will declare a hung jury with regard to the other two counts thatyou have not been able to make a decision on." Eventually, the jury reached a verdict onthe count of rape in the first degree, but remained divided on the count of criminal sexualact in the first degree. The court took a second partial verdict and the jury founddefendant guilty of rape in the first degree.
Specifically, defendant argues that County Court's statement to the jury, that "[w]eare not going to have you come back here tomorrow," added to the standardAllen charge, created a time restraint that pressured the jury into making a rusheddecision and a forced verdict. The fact that the jury continued to deliberate for a fewhours after the Allen charge and did not reach a verdict on the count of criminalsexual act in the first degree indicates, in our view, that the court's statement did not havean undue effect on the jury. Accordingly, County Court did not err [*3]when it denied defendant's motion to set aside the verdictbased on the Allen charge (see People v Guerrier, 46 AD3d at938-939).
Lastly, we find no merit in defendant's contention that County Court improperlyassumed the role of advocate for the People by asking the nurse practitioner a number ofquestions regarding medical evidence not mentioned in direct examination orcross-examination at trial. "A court may not . . . assume the advocacy roletraditionally reserved for counsel" (People v Arnold, 98 NY2d 63, 68 [2002]),but " 'is permitted to raise matters on its own initiative in order to elicitsignificant facts, clarify or enlighten an issue or to facilitate the orderly and expeditiousprogress of the trial' " (People v Lupo, 92 AD3d 1136, 1138 [2012], quotingPeople v Tucker, 140 AD2d 887, 891 [1988], lv denied 72 NY2d 913[1988]). In denying defendant's motion to set aside the verdict, County Court found thatits questioning of the nurse practitioner was limited, reasonable and did not suggest anypartiality, bias or hostility since the nurse practitioner agreed with defense counsel onre-cross-examination that her court-elicited testimony "doesn't tell anything in this case"and had "no significance" here. Thus, there is no support in the record that the court'squestioning improperly interfered with the proceeding or created a tactical advantage forthe People (see People v Lupo, 92 AD3d at 1138). As such, we find that CountyCourt did not err when it denied defendant's motion to set aside the verdict based on thecourt's questioning of the nurse practitioner.
Peters, P.J., McCarthy, Lynch and Rose, JJ., concur. Ordered that the judgment isaffirmed.