        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

297
KA 16-01433
PRESENT: WHALEN, P.J., SMITH, CENTRA, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

MICHAEL DEITZ, DEFENDANT-APPELLANT.


BRUCE R. BRYAN, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Thomas J.
Miller, J.), rendered January 25, 2016. The judgment convicted
defendant, upon his plea of guilty, of predatory sexual assault
against a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of predatory sexual assault against a child
(Penal Law § 130.96). We reject defendant’s contention that County
Court erred in refusing to suppress his statement to the police as
“involuntarily made” (CPL 60.45 [1]). “The voluntariness of a
confession is to be determined by examining the totality of the
circumstances surrounding the confession” (People v Coggins, 234 AD2d
469, 470; see People v Clark, 139 AD3d 1368, 1369, lv denied 28 NY3d
928). Here, the record establishes that defendant voluntarily agreed
to accompany the police officers from his place of employment to
another location and, once in the interview room there, he agreed to
speak to the officers after receiving Miranda warnings (see People v
Jacobson, 60 AD3d 1326, 1327, lv denied 12 NY3d 916). Contrary to
defendant’s contention, we conclude that the interrogating officer’s
assurances to defendant that defendant was not a sexual predator or a
bad person, and that he would feel better if he told the truth “were
not improper or unusual where, as here, there is no evidence that
defendant was of subnormal intelligence or susceptible to suggestion”
(Clark, 139 AD3d at 1369; see People v Johnson, 52 AD3d 1286, 1287, lv
denied 11 NY3d 738). Nor was defendant’s statement rendered
involuntary by any alleged deception by the officer, inasmuch as no
specific promises were made to defendant to induce him to confess (see
People v Johnston, 143 AD3d 1227, 1228, lv denied ___ NY3d ___ [Jan.
4, 2017]), and “it cannot be said that the alleged deception was so
fundamentally unfair as to deny [defendant] due process” (People v
                                 -2-                           297
                                                         KA 16-01433

Clyburn-Dawson, 128 AD3d 1350, 1351, lv denied 26 NY3d 966 [internal
quotation marks omitted]). In sum, even assuming, arguendo, that the
police misled defendant, we conclude that “ ‘such deception did not
create a substantial risk that defendant might falsely incriminate
himself’ ” (People v Camacho, 70 AD3d 1393, 1394, lv denied 14 NY3d
886).

     Finally, we conclude that the sentence is not unduly harsh or
severe.




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
