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

884
KA 09-02050
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEREMY SCHROO, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

JASON L. COOK, DISTRICT ATTORNEY, PENN YAN (WENDY EVANS LEHMANN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Yates County Court (W. Patrick
Falvey, J.), rendered October 6, 2009. The judgment convicted
defendant, upon a jury verdict, of sexual abuse in the first degree
(two counts), course of sexual conduct against a child in the first
degree and endangering the welfare of a child (two counts).

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

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of, inter alia, two counts of sexual abuse in
the first degree (Penal Law § 130.65 [3]) in connection with two
victims, one of whom is his daughter, and one count of course of
sexual conduct against a child in the first degree (§ 130.75 [1] [a])
with respect to his daughter. Defendant contends that County Court
erred in refusing to suppress statements that he made to the police
because the police officer had not told him he was free to leave
before he made incriminating statements. We reject defendant’s
contention that he was in custody when he made the statements.
Indeed, the court’s determination that defendant was not in custody
when he made the statements will not be disturbed unless it is
“ ‘clearly erroneous,’ ” and that is not the case here (People v
Jones, 9 AD3d 837, 839, lv denied 3 NY3d 708, 4 NY3d 745). The
evidence presented at the suppression hearing established that
defendant initially was interviewed for 25 minutes at the public
safety building. He drove himself there and was not restrained, and
the questions were investigative rather than accusatory. Thus, the
court properly determined that defendant was not in custody when he
made certain of the self-incriminating remarks sought to be suppressed
(see People v Lunderman, 19 AD3d 1067, 1068-1069, lv denied 5 NY3d
830). With respect to the remainder of the remarks sought to be
suppressed, we note that the second interview during which defendant
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                                                         KA 09-02050

made those remarks occurred in his home, where he also was not in
custody (see People v Paulman, 11 AD3d 878, affd 5 NY3d 122).

     Defendant further contends that the evidence with respect to the
younger of the two victims, who is not his daughter, is legally
insufficient to support the conviction of one of the two counts of
sexual abuse in the first degree because that child was not competent
to testify under oath and because the People failed to prove the
element that defendant’s conduct was for the purpose of gratifying his
sexual desire. Defendant failed to preserve those contentions for our
review (see People v Gray, 86 NY2d 10, 19) and, in any event, they are
without merit. The presumption pursuant to CPL 60.20 (2) that a child
under the age of nine is not competent to give sworn testimony in a
criminal proceeding may be overcome “if, upon examination, the court
is satisfied that the witness understands the nature of an oath”
(People v Hetrick, 80 NY2d 344, 349) and, contrary to defendant’s
contention, the court properly determined in this case that the
presumption of incompetency was overcome (see generally People v Heck,
229 AD2d 931, 932). Also contrary to defendant’s contention, the
element of sexual gratification may be inferred from the sexual nature
of defendant’s actions (see People v Willis, 79 AD3d 1739, 1740, lv
denied 16 NY3d 864).

     With respect to the crimes related to his daughter, upon viewing
the evidence in the light most favorable to the People (see People v
Contes, 60 NY2d 620, 621), a rational trier of fact could have found
the essential elements of those crimes beyond a reasonable doubt and
thus the evidence is legally sufficient to support the conviction (see
People v Calabria, 3 NY3d 80, 81-82). Defendant’s 10-year-old
daughter testified that she usually slept with her father when she
visited him, that the abuse occurred every time she slept with him,
and that the abuse began when she was in the first grade. The
daughter’s mother testified that, from the time the daughter was in
kindergarten she stayed at defendant’s residence almost every weekend
and for extended periods during the summer, including the period
alleged in the indictment, i.e., the 2006-2007 school year, when the
daughter was in the second grade, through August 31, 2008. We thus
conclude that, contrary to defendant’s contention, the evidence
established that the abuse occurred over a period in excess of three
months (see Penal Law § 130.75 [1] [a]). In addition, the jury was
entitled to credit the testimony of the People’s witnesses, and we
therefore further conclude that the verdict is not against the weight
of the evidence with respect to both victims (see generally People v
Bleakley, 69 NY2d 490, 495).

     We reject defendant’s contention that he was denied his
constitutional right to a fair trial based on prosecutorial misconduct
and the cumulative effect of the various alleged errors raised on
appeal. We also reject defendant’s contention that his sentence is
unduly harsh and severe. Although the court recognized that defendant
was offered lenient sentences in two separate plea offers prior to
trial, the court nevertheless determined that the sentences ultimately
imposed were warranted after it heard the testimony presented at trial
                                 -3-                           884
                                                         KA 09-02050

and reviewed the presentence report. We decline defendant’s request
that we exercise our power to modify the sentences as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [b]). We
have reviewed defendant’s remaining contentions and conclude that they
are without merit.




Entered:   September 30, 2011                  Patricia L. Morgan
                                               Clerk of the Court
