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

964
KA 09-02542
PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GREGORY JOHNSON, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE COOK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered October 19, 2009. The judgment convicted
defendant, after a nonjury trial, of criminal sexual act in the second
degree (two counts) and endangering the welfare of 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 nonjury verdict, of two counts of criminal sexual act in the
second degree (Penal Law § 130.45 [1]) and one count of endangering
the welfare of a child (§ 260.10 [1]). We reject defendant’s
contention that Supreme Court erred in refusing to suppress his
statement to the police. Even assuming, arguendo, that defendant was
in custody when he made the statement, we conclude that the evidence
presented at the suppression hearing supports the court’s
determination that defendant knowingly, voluntarily, and intelligently
waived his Miranda rights before making the statement (see People v
Peterkin, 89 AD3d 1455, 1455, lv denied 18 NY3d 885). Contrary to
defendant’s contention, “the record of the suppression hearing fails
to establish that he was intoxicated at the time he waived those
rights ‘to the degree of mania, or of being unable to understand the
meaning of his statements’ ” (id. at 1455, quoting People v Schompert,
19 NY2d 300, 305, cert denied 389 US 874).

     Defendant also contends that he was denied his constitutional
right to present a defense based on the refusal of County Court, which
conducted the nonjury trial, to admit in evidence a neglect petition
filed in Family Court against the victim’s mother. That contention is
not preserved for our review (see People v Lane, 7 NY3d 888, 889;
People v Baxter, 108 AD3d 1158, 1160). In any event, it is well
settled that the “right to . . . present a defense is not absolute”
                                 -2-                           964
                                                         KA 09-02542

(People v Williams, 81 NY2d 303, 313), and we conclude that the
petition was “too remote or speculative” to establish that the
victim’s mother was attempting to manipulate the victim into
fabricating allegations of sexual abuse against defendant, who planned
to file for custody of the victim (People v Poole, 55 AD3d 1349, 1350,
lv denied 11 NY3d 929).

     Viewing the evidence in light of the elements of the crimes in
this nonjury trial (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s contention that the verdict is against the weight
of the evidence (see generally People v Bleakley, 69 NY2d 490, 495).
“[N]othing in the record suggests that the victim was ‘so unworthy of
belief as to be incredible as a matter of law’ or otherwise tends to
establish defendant’s innocence of those crimes . . . , and thus it
cannot be said that the [court] failed to give the evidence the weight
it should be accorded” (People v Woods, 26 AD3d 818, 819, lv denied 7
NY3d 765; see People v Ludwig, 104 AD3d 1162, 1164).

     Finally, we reject defendant’s challenge to the severity of the
sentence. Defendant, a second felony offender, was convicted of
engaging in oral and anal sexual contact with his 13-year-old son.
“[T]he statement of defendant that he is HIV positive, without any
additional information as to the state of his health, is insufficient
to warrant a reduction of the sentence” (People v Scott, 101 AD3d
1773, 1774). Furthermore, defendant’s crack cocaine addiction and HIV
positive status “were before the court at the time of sentencing . . .
[and] [t]hus, defendant has not established ‘extraordinary
circumstances . . . that would warrant a reduction of the sentence as
a matter of discretion in the interest of justice’ ” (id.). Although
the seven-year sentence is longer than the plea offer of two years, “a
sentence imposed after trial may be more severe than a promised
sentence in connection with a plea agreement” (People v Chapero, 23
AD3d 492, 493, lv denied 6 NY3d 846).




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
