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

1079
KA 09-02633
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOHN BROWN, DEFENDANT-APPELLANT.


JEANNIE D. MICHALSKI, PUBLIC DEFENDER, GENESEO, FOR
DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Livingston County Court (Dennis S.
Cohen, J.), rendered September 10, 2009. The judgment convicted
defendant, upon a jury verdict, of rape in the second degree, sexual
abuse in the second degree and endangering the welfare of a child.

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of rape in the second degree (Penal Law § 130.30 [1]), sexual
abuse in the second degree (§ 130.60 [2]), and endangering the welfare
of a child (§ 260.10 [1]), defendant contends that County Court erred
in refusing to suppress the statements that he made to the police.
Defendant’s specific contentions are that, contrary to the court’s
conclusion, he was in custody, that the statements were the result of
coercion and intimidation by the police sergeant who questioned him,
and that he did not understand the import of the Miranda warnings
provided by the police sergeant. We reject those contentions.

     “In determining whether a defendant was in custody for Miranda
purposes, ‘[t]he test is not what the defendant thought, but rather
what a reasonable [person], innocent of any crime, would have thought
had he [or she] been in the defendant’s position’ ” (People v Kelley,
91 AD3d 1318, 1318, lv denied 19 NY3d 963, quoting People v Yukl, 25
NY2d 585, 589, cert denied 400 US 851). Here, the record establishes
that defendant voluntarily drove himself to the police station, was
not handcuffed, was permitted to leave the police station to smoke a
cigarette, and was not subjected to lengthy, coercive or accusatory
questioning (see People v Towsley, 53 AD3d 1083, 1084, lv denied 11
NY3d 795; People v Duda, 45 AD3d 1464, 1466, lv denied 10 NY3d 764).
Consequently, we conclude that defendant was not in custody. In any
event, the police sergeant provided Miranda warnings at the start of
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                                                         KA 09-02633

the interview, prior to any statements being made by defendant.

     We also reject defendant’s contention that his statements were
the result of police coercion and intimidation. The record of the
suppression hearing supports the court’s determination that the
statements were not coerced, i.e., defendant received no promises in
exchange for making the statements and he was not threatened in any
way, and “the court’s determination is entitled to great deference”
(People v Peay, 77 AD3d 1309, 1310, lv denied 15 NY3d 955; see People
v Heary, 104 AD3d 1208, 1210, lv denied 21 NY3d 943, reconsideration
denied 21 NY3d 1016; see generally People v Prochilo, 41 NY2d 759,
761). Contrary to defendant’s further contention, the evidence
introduced at the suppression hearing fails to establish that he did
not understand the import of the Miranda warnings. To the contrary,
having reviewed the record of the Huntley hearing, we conclude that
“defendant understood the Miranda warnings and, with such
understanding, freely chose to answer the questions asked by the
police” (People v Benton, 158 AD2d 987, 987, lv denied 75 NY2d 963;
see People v Young, 303 AD2d 952, 952).

     We reject defendant’s further contention that the statements were
not sufficiently corroborated. “A person may not be convicted of any
offense solely upon evidence of a confession or admission made by him
without additional proof that the offense charged has been committed”
(CPL 60.50). “[T]he policy behind the statute is satisfied by the
production of some [evidence], of whatever weight, that a crime was
committed by someone” (People v Daniels, 37 NY2d 624, 629; see People
v Booden, 69 NY2d 185, 187-188). Viewing the evidence in the light
most favorable to the People (see People v Potter, 262 AD2d 1074,
1074; see generally People v Smith, 55 NY2d 945, 947), we conclude
that the 13-year-old victim’s testimony that defendant had sexual
intercourse with her was sufficient to meet the corroboration
requirement.

     Defendant contends that the verdict is against the weight of the
evidence because, inter alia, the jury acquitted him of certain
additional crimes involving the same victim. That contention is
actually a challenge to the verdict as repugnant, but defendant failed
to preserve that challenge for our review inasmuch as he did not
object to the verdict on that ground before the jury was discharged
(see People v Alfaro, 66 NY2d 985, 987). We decline to exercise our
power to review that contention as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]). Viewing the evidence in
light of the elements of the crimes as charged to the jury (see People
v Danielson, 9 NY3d 342, 349), we otherwise reject defendant’s
contention that the verdict is against the weight of the evidence (see
generally People v Bleakley, 69 NY2d 490, 495).

     Defendant also failed to preserve for our review his contention
that the court erred in permitting the People to recall the victim to
testify following the testimony of another witness (see People v Hare,
27 AD3d 1171, 1172, lv denied 6 NY3d 894; People v Cunningham, 13 AD3d
1118, 1119-1120, lv denied 4 NY3d 829). In any event, we conclude
                                 -3-                          1079
                                                         KA 09-02633

that the court did not abuse its discretion in permitting the People
to recall the victim as a witness (see People v Rostick, 244 AD2d 768,
768-769, lv denied 91 NY2d 929).

     Defendant failed to preserve for our review his further
contention that the sentence imposed was a vindictive punishment for
rejecting the plea offer and proceeding to trial (see People v Hurley,
75 NY2d 887, 888). In any event, that contention is without merit.
Defendant primarily relies upon the fact that a longer sentence was
imposed after trial, but “[i]t is well settled that [t]he mere fact
that a sentence imposed after trial is greater than that offered in
connection with plea negotiations is not proof that defendant was
punished for asserting his right to trial” (People v Spencer, 108 AD3d
1081, 1083 [internal quotation marks omitted]). Finally, the sentence
is not unduly harsh or severe.




Entered:   November 15, 2013                   Frances E. Cafarell
                                               Clerk of the Court
