| People v Plass |
| 2018 NY Slip Op 02488 [160 AD3d 771] |
| April 11, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Scott Plass, Appellant. |
Bruce A. Petito, Poughkeepsie, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (VictorAlfieri, J.), rendered May 27, 2015, convicting him of criminal sexual act in the third degree (sixcounts), sexual abuse in the third degree (three counts), and endangering the welfare of a child,upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after ahearing (Stephen L. Greller, J.), of that branch of the defendant's omnibus motion which was tosuppress his statements to law enforcement authorities.
Ordered that the judgment is affirmed.
The defendant was charged with criminal sexual act in the third degree (six counts), sexualabuse in the third degree (three counts), and endangering the welfare of a child, for conductagainst a victim who was 16 years old at the time of the offenses. The County Court denied thatbranch of the defendant's omnibus motion which was to suppress his statements to lawenforcement authorities, and his separate motion to sever count 10 of the indictment, whichcharged endangering the welfare of a child, on the ground that the acts underlying that chargewere alleged to have been committed outside the court's jurisdiction. After a trial, a juryconvicted the defendant of all 10 counts.
Pursuant to CPL 20.40, and insofar as is relevant here, a County Court has jurisdiction overan offense where, inter alia, conduct occurred within the county which was sufficient to establishan element of the offense (see People vGuzman, 153 AD3d 1273, 1275 [2017]). Two offenses are properly joinable in the sameindictment pursuant to CPL 200.20 (2) (b) when they are based upon different criminaltransactions, but they "are of such nature that either proof of the first offense would be materialand admissible as evidence in chief upon a trial of the second," or, pursuant to subsection (c),when they are "defined by the same or similar statutory provisions and consequently are the sameor similar in law" (CPL 200.20 [2] [b], [c]). A defendant may seek severance of counts joinedunder subsection (c) "in the interest of justice and for good cause shown" (CPL 200.20 [3];see People v Lane, 56 NY2d 1, 7 [1982]; People v Haywood, 124 AD3d 798, 800 [2015]). Good cause existswhere, inter alia, there is substantially more evidence as to one offense than the others and thejury is unlikely to be able to separate them or where the defendant demonstrates that he hasimportant testimony to give regarding one count and a genuine need to refrain from testifying asto the other (see CPL 200.20 [3] [a], [b]). However, where counts are properly joinedunder subsection (b), a court does not have the authority to sever the counts (see People v Bonilla, 127 AD3d985, 986 [2015]; People vBeecham, 74 AD3d 1216 [2010]).
Here, the alleged conduct forming the basis for count 10 of the indictment occurred in bothDutchess and Suffolk Counties, and proof of the conduct constituting the other nine counts wasmaterial and admissible as evidence in chief as to count 10. Further, the conduct which allegedlyoccurred in Dutchess County was sufficient to establish an element of the offense of endangeringthe welfare of a child (see CPL 20.40 [1] [a]). Accordingly, count 10 was properly joinedto the other counts pursuant to CPL 200.20 (2) (b), and the County Court correctly concluded thatit lacked the authority to sever it (see People v Bonilla, 127 AD3d at 986; People vBeecham, 74 AD3d at 1216).
"At a hearing to suppress statements made to law enforcement officials, the People have theburden of demonstrating, beyond a reasonable doubt, that the defendant's statements werevoluntary" (People v Johnson, 139AD3d 967, 969 [2016], affd 31 NY3d 942 [2018]; see People v JinCheng Lin, 26 NY3d 701, 719 [2016]; People v Thomas, 22 NY3d 629, 641 [2014]; People vWilliams, 62 NY2d 285, 288-289 [1984]). If the People meet their burden, the defendantthen bears the burden of persuasion (see People v Johnson, 139 AD3d at 969; People v Santos, 112 AD3d 757,758 [2013]; People v Aveni, 100AD3d 228, 237 [2012]). A hearing court's credibility determinations are entitled to deferenceand will not be disturbed unless they are not supported by the record (see People v Mateo,2 NY3d 383, 413 [2004]; People v Johnson, 139 AD3d at 970; People v Hobson, 111 AD3d 958,959 [2013]; People v Baliukonis, 35AD3d 626, 627 [2006]).
Here, the defendant contends that the police deceived him by implying that makingstatements against his penal interest would be to his advantage. However, generalized promisesof leniency do not create a substantial risk that a defendant might falsely incriminate himself orherself (see People v Lugo, 60AD3d 867, 868-869 [2009]; People v Rufino, 293 AD2d 498, 499 [2002]), and thereis nothing in this record to suggest that the statements made by the police were of a nature thatthey would have overborne the defendant's will (see People v Mateo, 2 NY3d at 413;People v Johnson, 139 AD3d at 969-970). Therefore, the County Court properly deniedthat branch of the defendant's omnibus motion which was to suppress his statements to thepolice.
The evidence presented against a defendant is legally sufficient if, "after viewing theevidence in the light most favorable to the prosecution, any rational trier of fact could have foundthe essential elements of the crime beyond a reasonable doubt" (People v Taylor, 94NY2d 910, 911 [2000] [internal quotation marks omitted]; see People v Davis, 28 NY3d 294, 300 [2016]; People v Denson, 26 NY3d 179,188 [2015]; People v Heidgen, 22NY3d 259, 277 [2013]; People vAbraham, 22 NY3d 140, 146 [2013]). Contrary to the defendant's contention, thevictim's testimony as to his date of birth and the defendant's own statement of his date of birth tothe police were legally sufficient to establish a lack of consent based upon incapacity to consentbecause the victim was less than 17 years old (see Penal Law § 130.05 [1],[2] [b]; [3] [a]), and thus to support the defendant's convictions of criminal sexual act in the thirddegree (see Penal Law § 130.40 [2]) and sexual abuse in the third degree(see Penal Law § 130.55). In addition, the defendant's convictions were notagainst the weight of the evidence (seePeople v Kancharla, 23 NY3d 294, 302-303 [2014]; People v Danielson, 9 NY3d 342, 348 [2007]; People vBleakley, 69 NY2d 490, 495 [1987]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Rivera, J.P., Austin, Connolly and Iannacci, JJ., concur.