| People v Ramos |
| 2018 NY Slip Op 06039 [164 AD3d 1267] |
| September 12, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Daniel S. Ramos, Appellant. |
N. Scott Banks, Hempstead, NY (Tammy Feman and Dori Cohen of counsel), forappellant.
Madeline Singas, District Attorney, Mineola, NY (Tammy J. Smiley and Brian Witthuhn ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Teresa K.Corrigan, J.), rendered July 24, 2015, convicting him of criminal sexual act in the first degree andendangering the welfare of a child, upon a jury verdict, and imposing sentence. The appeal bringsup for review the denial, after a hearing, of those branches of the defendant's omnibus motionwhich were to suppress physical evidence and his statements to law enforcement officials.
Ordered that the judgment is affirmed.
We agree with the hearing court's determination to deny that branch of the defendant'somnibus motion which was to suppress a statement that he made to law enforcement officials atthe scene of the subject crimes because he was not the subject of custodial interrogation at thattime (see People v Vidal, 44 AD3d802 [2007]; People v Thomas, 174 AD2d 447 [1991]; cf. People v Gamble,129 AD2d 470 [1987]). We also agree with the hearing court's determination that the police hadprobable cause to arrest the defendant based on his statement and the accusations of thecomplainant and her mother (see Peoplev Mendoza, 49 AD3d 559 [2008]; People v Bellow, 255 AD2d 450 [1998];People v Haynes, 251 AD2d 595 [1998]). Moreover, the record supports the hearingcourt's determination to deny that branch of the defendant's omnibus motion which was tosuppress his statement made at the police station. The statement was made voluntarily after thedefendant knowingly, intelligently, and voluntarily waived his Miranda rights (seeMiranda v Arizona, 384 US 436 [1966]; People v Currie, 131 AD3d 1265 [2015]; People vO'Malley, 282 AD2d 884 [2001]). Contrary to the defendant's contention, a buccal swab ofhis cheek was properly obtained following his lawful arrest and upon his consent (seeSchneckloth v Bustamonte, 412 US 218 [1973]; People v Kuhn, 33 NY2d 203[1973]; People v Bowen, 229 AD2d 954 [1996]; People v Delosh, 195 AD2d 769[1993]; People v Osburn, 155 AD2d 926 [1989]).
The Supreme Court providently exercised its discretion in determining that the thenseven-year-old complainant was competent to give sworn testimony. The examination of thechild revealed that she knew the difference between telling the truth and telling a lie, promised totell the truth, and indicated that she would be punished if she lied (see CPL 60.20 [2];People v Nisoff, 36 NY2d 560, 566 [1975]; People v Mendoza, 49 AD3d 559 [2008]; Matter of James N., 19 AD3d 1047[2005]; People v McIver, 15 AD3d677 [2005]).
Contrary to the defendant's contention, because defense counsel assailed the testimony of thecomplainant on cross-examination as a recent fabrication, the Supreme Court [*2]correctly admitted the prior consistent statement of the complainanton direct examination of a law enforcement witness (see People v McDaniel, 81 NY2d10, 18 [1993]; People v Walsh, 289 AD2d 517 [2001]; People v Wilens, 198AD2d 463 [1993]).
The Supreme Court providently exercised its discretion in denying defense counsel's motionto recall the complainant's mother to testify because defense counsel sought to cross-examine herabout a matter that was collateral and would have caused delay (see People v Cordero,306 AD2d 9 [2003]; People v Samuels, 119 AD2d 706 [1986]).
The defendant's contention that the Supreme Court failed to provide a meaningful responseto a jury note is without merit. The jury note requested "to hear the 911 call from [thecomplainant's mother] or the transcript, if it was on record. If it's on the record, can we see/hearit." It is undisputed that the court informed the jury that no 911 call or transcript of that call waspart of the evidence in the case. Therefore, the court's response to the jury note wasappropriate.
The record does not support the defendant's contention that the Supreme Court acted withbias against him in its evidentiary rulings (see People v Argentieri, 66 AD3d 558 [2009]; People v Casey, 61 AD3d 1011[2009]; People v Love, 307 AD2d 528 [2003]; People v Maxam, 301 AD2d 791[2003]).
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d490 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was notagainst the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Roman, J.P., Cohen, Miller and Maltese, JJ., concur.