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

1006
KA 11-02320
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GREGORY A. JONES, DEFENDANT-APPELLANT.


JOSEPH T. JARZEMBEK, BUFFALO, FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Genesee County
(Robert C. Noonan, A.J.), rendered November 15, 2011. The judgment
convicted defendant, upon a jury verdict, 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 a jury verdict, of predatory sexual assault against a child
(Penal Law § 130.96). We reject defendant’s contention that Supreme
Court erred in refusing to suppress statements that he made to the
police on the ground that he was in custody at the time and had not
been administered Miranda warnings. The court properly determined
that “a reasonable person in defendant’s position, innocent of any
crime, would not have believed that he or she was in custody, and thus
Miranda warnings were not required” (People v Lunderman, 19 AD3d 1067,
1068, lv denied 5 NY3d 830; see People v Yukl, 25 NY2d 585, 589, cert
denied 400 US 851). Even assuming, arguendo, that defendant preserved
for our review his further contention that his statements to the
police were obtained in violation of his right to counsel, we conclude
that he thereafter waived that contention inasmuch as he conceded
during the suppression hearing that the police ceased questioning him
immediately after he requested a lawyer (see generally People v
Harris, 97 AD3d 1111, 1112, lv denied 19 NY3d 1026).

     Contrary to defendant’s contention, the unsworn testimony of the
seven-year-old victim was sufficiently corroborated by “evidence
tending to establish the crime and connecting defendant with its
commission” (People v Groff, 71 NY2d 101, 104), including evidence of
defendant’s opportunity to commit the crime, the testimony of other
witnesses, and the victim’s description of a pornographic video that
was found on defendant’s computer. “Strict corroboration of every
                                 -2-                          1006
                                                         KA 11-02320

material element of the charged crime is not required, as the purpose
of corroboration is to ensure the trustworthiness of the unsworn
testimony rather than [to] prove the charge itself” (People v Kolupa,
59 AD3d 1134, 1135, affd 13 NY3d 786 [internal quotation marks
omitted]; see People v Petrie, 3 AD3d 665, 667).

     Finally, we reject defendant’s contention that he was denied
effective assistance of counsel. “[T]he evidence, the law and the
circumstances of [this] case, viewed together and as of the time of
representation, reveal that meaningful representation was provided”
(People v Satterfield, 66 NY2d 796, 798-799; see generally People v
Baldi, 54 NY2d 137, 146-147).




Entered:   October 4, 2013                     Frances E. Cafarell
                                               Clerk of the Court
