| People v Perri |
| 2018 NY Slip Op 04134 [162 AD3d 1487] |
| June 8, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Anthony S. Perri, Appellant. |
Mark D. Funk, Conflict Defender, Rochester (Kathleen P. Reardon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Joseph Plukas of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.), renderedDecember 5, 2013. The judgment convicted defendant, upon a jury verdict, of sexual abuse in thefirst degree (three counts) and endangering the welfare of a child (three counts).
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,that part of the omnibus motion seeking to suppress defendant's videotaped statement is grantedin its entirety, the motion to preclude the use of defendant's grand jury testimony at trial isgranted, and a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofthree counts each of sexual abuse in the first degree (Penal Law § 130.65 [3]) andendangering the welfare of a child (§ 260.10 [1]). We reject defendant's contentionthat the conviction is not supported by legally sufficient evidence. There is a valid line ofreasoning and permissible inferences that could lead a rational person to conclude that defendantcommitted the crimes in question (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Contrary to defendant's further contention, viewing the evidence in light of the elementsof the crimes as charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is notagainst the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Defendant contends that County Court erred in refusing to suppress evidence of the viewingby victims of video surveillance footage, because the sole purpose of the viewing was theidentification of defendant and the procedure used for viewing the video recording was undulysuggestive. We reject defendant's contention. " '[T]here is nothing inherently suggestive'in showing a witness a surveillance video depicting the defendant and other individuals, providedthat the 'defendant was not singled-out, portrayed unfavorably, or in any other manner prejudicedby police conduct or comment or by the setting in which [the defendant] was taped' " (People v Davis, 115 AD3d 1167,1169 [4th Dept 2014], lv denied 23 NY3d 1019 [2014], quoting People vEdmonson, 75 NY2d 672, 676-677 [1990], rearg denied 76 NY2d 846 [1990],cert denied 498 US 1001 [1990]), and we conclude that the procedure used here did notsuffer from those infirmities.
We agree with defendant, however, that the court erred in suppressing only a portion of hisvideotaped statement to police investigators inasmuch as the portion of the statement that thecourt refused to suppress was also obtained prior to the administration of Mirandawarnings. Although the court properly determined that defendant was in custody from the outsetof the interview, we conclude that the court erred in determining that Miranda warningswere not required before defendant admitted to having a foot fetish inasmuch as "the factsindicated that an interrogational environment existed" from the outset of the interview (People v Tavares-Nunez, 87 AD3d1171, 1173 [2d Dept 2011], lv denied 19 NY3d 1105 [2012]; see People v Bungo, 60 AD3d1449, 1449 [4th Dept 2009]; People v Kollar, 305 AD2d 295, 299 [1st Dept 2003],appeal dismissed 1 NY3d 591 [2004]).
We also agree with defendant that the court erred in denying his motion to preclude thePeople's use of his grand jury testimony at trial on the ground that he was mentally incompetentat the time of such testimony. Although a defendant is presumed to be competent to testify beforethe grand jury (see People v Gelikkaya, 84 NY2d 456, 459 [1994]; People vBones, 309 AD2d 1238, 1239 [4th Dept 2003], lv denied 1 NY3d 568 [2003]), here,we conclude that defendant rebutted that presumption. Indeed, defendant's grand jury testimony,a rambling, delusional and bizarre narrative of government conspiracy, prompted one grand jurorto inquire of defendant whether he had any psychiatric diagnoses. Within days of his testimony atthe grand jury, the arraigning court referred defendant for a CPL article 730 psychiatricexamination based upon what the court described as "confused, or bizarre behavior" and theinability "to understand charges or court processes." Shortly thereafter, two psychiatric examinersfound that defendant lacked capacity to understand the proceedings against him or to assist in hisdefense based upon a diagnosis of Delusional Disorder, Paranoid Type. As a result, defendantwas involuntarily committed to a psychiatric facility under the auspices of the Office of MentalHealth. We thus conclude that defendant rebutted the presumption of competence, and that thecourt abused its discretion in denying the motion to preclude the grand jury testimony (cf.Gelikkaya, 84 NY2d at 460-461).
We therefore reverse the judgment, grant that part of the omnibus motion seeking to suppressdefendant's videotaped statement in its entirety as well as defendant's motion to preclude thePeople from using his grand jury testimony at trial, and we grant a new trial. In light of ourdetermination, we do not review defendant's remaining contentions. Present—Whalen,P.J., Smith, Peradotto, Carni and DeJoseph, JJ.